Robbie Collins v. Anthony Padula

555 F. App'x 246

Opinion

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Robbie Collins seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. The notice of appeal was received in the district court shortly after expiration of the appeal period. Because Collins is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. See Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2879, 101 L.Ed.2d 245 (1988). Although the record indicates that Collins did not give the notice of appeal to prison officials until after expiration of the appeal period, Collins claimed in the notice that he had sent an earlier notice of appeal to the district court. The record does not contain any earlier notice of appeal or reveal when Collins may have given any such notice of appeal to prison officials for mailing. Accordingly, 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.