Rehearing granted, April 18, 2002




                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 01-7907



EUGENE C. NICHOLAS,

                                           Petitioner - Appellant,

          versus


RONALD J. ANGELONE, Director, Virginia De-
partment of Corrections,

                                            Respondent - Appellee.



Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Robert G. Doumar, Senior District
Judge. (CA-00-493-2)


Submitted:   February 14, 2002         Decided:     February 27, 2002


Before WIDENER, LUTTIG, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Eugene C. Nicholas, Appellant Pro Se. Linwood Theodore Wells, Jr.,
Assistant Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Eugene C. Nicholas seeks to appeal the district court’s order

accepting the magistrate judge’s report and recommendation and

denying his 28 U.S.C.A. § 2254 (West 1994 & Supp. 2001) petition.

We dismiss the appeal for lack of jurisdiction because Nicholas’

notice of appeal was not timely filed.

     Parties are accorded thirty days after the entry of the dis-

trict court’s final judgment or order to note an appeal, see Fed.

R. App. P. 4(a)(1), unless the district court extends the appeal

period under Fed. R. App. P. 4(a)(5) or reopens the appeal period

under Fed. R. App. P. 4(a)(6).     This appeal period is “mandatory

and jurisdictional.”     Browder v. Director, Dep’t of Corrections,

, 264 (1978) (quoting United States v. Robinson, 

, 229 (1960)).

     The district court’s order was entered on the docket on

September 27, 2001.      Appellant’s notice of appeal was filed on

November 1, 2001.*     Because Appellant failed to file a timely

notice of appeal or to obtain an extension or reopening of the

appeal period, we deny a certificate of appealability and dismiss

the appeal.   We dispense with oral argument because the facts and




     *
       For the purpose of this appeal, we assume that the date
appearing on Nicholas’ notice of appeal is the earliest date it
could have been given to prison officials for mailing. See Fed. R.
App. P. 4(c); Houston v. Lack, 

 (1988).


                                  2
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.




                                                        DISMISSED




                                3