Nesbitt v. Warden Tyger River Correctional Institution

599 F. App'x 68

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 1, 2015
• Docket: 14-7626
• Status: Unpublished

Opinion

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Brian Keith Nesbitt, a South Carolina prisoner, seeks to appeal the district court’s order adopting the magistrate judge’s recommendation and denying relief on his 28 U.S.C. § 2254 (2012) petition. Parties in á civil action in which the United States is not a party have thirty days following entry of the judgment in which to file a notice of appeal. Fed. R.App. P. 4(a)(l,)(A). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

Because Nesbitt is incarcerated, the notice of appeal is considered filed on the date it was properly delivered to prison officials for mailing to the court. Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The record does not conclusively reveal when Nesbitt delivered the notice of appeal to prison officials for mailing. Accordingly, although we grant Nes-bitt’s motion to amend his informal brief, we remand the case for the limited purpose of allowing the district court to obtain this information from the parties and to determine whether the filing was timely under Fed. R.App. P. 4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.