Toalepai

MEMORANDUM **

California state prisoner Falao Toalepai appeals the district court’s dismissal of his 28 U.S.C. § 2254 motion as untimely. Toalepai seeks to challenge his jury trial conviction for one count of first degree murder with a deadly weapon in violation of Cal. Pen.Code §§ 187 and 12022(b). We do not reach the merits of Toalepai’s appeal because we hold that we lack appellate jurisdiction.

A timely filed notice of appeal is both mandatory and jurisdictional. Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264 , 98 S.Ct. 556 , 54 L.Ed.2d 521 (1978). Although ignored by the parties, we are “required to consider the timeliness of the appeal.” Rodgers v. Watt, 722 F.2d 456, 457 (9th Cir.1983); see also Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir.1981) (holding that a district court may not construe an untimely notice of appeal as a motion for extension of time).

On February 16, 2000, the district court entered judgment dismissing Toalepai’s habeas petition. Applying the prison mailbox rule articulated in Houston v. Lack, 487 U.S. 266, 275-76 , 108 S.Ct. 2379 , 101 L.Ed.2d 245 (1988), we determine that Toalepai filed his notice of appeal on April 15, 2000.…