UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 03-7914



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


JAMES GRAY,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-00-186; CA-02-1355)


Submitted:    May 12, 2004                     Decided:   May 21, 2004


Before WIDENER, WILLIAMS, and KING, Circuit Judges.


Remanded by unpublished per curiam opinion.


James Gray, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James Gray seeks to appeal the district court’s order

adopting a magistrate judge’s recommendation to deny relief on his

motion filed under 28 U.S.C. § 2255 (2000), an order denying his

motion for certificate of appealability, and a subsequent order

denying his motion for reconsideration.    In civil actions in which

the United States or an officer or agency thereof is a party, all

parties are accorded sixty days after the entry of the district

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

P. 4(a)(1)(B), 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).     These time periods are “mandatory and

jurisdictional.” Browder v. Dir., Dep’t of Corr., 

, 264

(1978) (quoting United States v. Robinson, 

, 229

(1960)).

           The district court’s order denying Gray’s § 2255 motion

was entered on the docket on August 21, 2003. The notice of appeal,

postmarked November 26, 2003, was received by the district court on

December 1, 2003.1   In his notice of appeal, Gray stated that he did


     1
      For the purpose of this appeal, we assume the date appearing
on the envelope containing the notice of appeal is the earliest date
it could have been properly delivered to prison officials for
mailing to the court. See Fed. R. App. P. 4(c); Houston v. Lack,

(1988). Under the certificate of service, the only
date reference is “Done this     day of November 2003.” To benefit
from the mailbox rule, the prisoner must comport with the
requirements of Fed. R. App. P. 4(c)(1) and 28 U.S.C. § 1746 (2000).
Gray does not attest to a date in the certificate of service by a

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not receive timely notice of the court’s order denying habeas

relief. We construe Gray’s statement as a motion to reopen the time

to note an appeal under Fed. R. App. P. 4(a)(6).2        See United

States v. Feuver, 

, 729 & n.7 (D.C. Cir. 2001).    Rule

4(a)(6) permits a district court to reopen the appeal period if (a)

the motion is filed within 180 days after the judgment or order is

entered or within 7 days after the moving party receives notice of

the entry, whichever is earlier; (b) the court finds that the moving

party was entitled to notice of the entry of the judgment or order

sought to be appealed but did not receive the notice from the

district court or any party within 21 days after entry; and (c) the

court finds that no party would be prejudiced.      Fed. R. App. P.

4(a)(6).

           Here, the record is unclear as to when Gray received

notice of the entry of the court’s order denying his § 2255 motion.

Accordingly, we remand the case to the district court for the court

to determine whether Gray can satisfy the requirements of Rule

4(a)(6).   See Ogden v. San Juan County, 

, 454 (10th Cir.

1994).   The record, as supplemented, will then be returned to this

court for further review.

                                                           REMANDED


declaration under penalty of perjury or a notarized statement.
     2
      Gray cannot benefit from Rule 4(a)(5) because he filed his
notice of appeal more than thirty days after the expiration of the
appeal period. See Fed. R. App. P. 4(a)(5).

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