Johnson v. Braxton

91 F. App'x 876

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 29, 2004
• Docket: No. 03-7330
• Status: Published

Opinion

OPINION

PER CURIAM.

Tyrone L. Johnson seeks to appeal the district court’s order

* denying relief on his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (2000). The district court dismissed Johnson’s petition in an order entered on July 1, 2003, and Johnson executed a notice of appeal on August 21, 2003. In his notice of appeal, Johnson requested the court to accept his untimely filing on the basis of “institutional interferr[e]nce.” This filing was made within the period of time applicable for a determination of excusable neglect under Fed. R.App. P. 4(a)(5), and expressed Johnson’s desire to preserve his appeal. See Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir.1986). Accordingly, because the district court has not ruled on Johnson’s motion for an extension of the appeal period, we remand this case to the district court for the limited purpose of permitting that court to determine whether Johnson has shown excusable neglect warranting an extension. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.

The case was decided by a magistrate judge upon the consent of the parties pursuant to 28 U.S.C. § 636(c) (2000).