Sellmon v. Compton

115 F. App'x 180

Opinion

PER CURIAM:

Tony R. Sellmon seeks to appeal from the district court’s order dismissing his habeas petition challenging the United States Parole Commission’s determination in his case. The district court dismissed Sellmon’s complaint in an order entered on May 10, 2004. Sellmon’s notice of appeal is dated August 2, 2004.

* Although Sellmon’s notice of appeal was not timely, it was submitted within the thirty day window for seeking an extension of time authorized by Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Further, Sellmon’s notice of appeal appears to expressly seek an extension of time to file a notice of appeal and to attempt to explain why such extension would be warranted. We therefore construe Sellmon’s notice of appeal as a motion for extension of time under Rule 4(a)(5). See Washington v. Bumgarner, 882 F.2d 899, 901 (4th Cir.1989) (litigant’s pleading must make a request for an extension of time and explain why it would be warranted in order to qualify as a Rule 4(a)(5) motion); Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir.1986). Accordingly, we remand this case to the district court for the limited determination of whether Sellmon has shown excusable neglect or good cause to warrant an extension of time for filing a notice of appeal. The record, as supplemented, then will be returned to this court for further consideration.

REMANDED

Because Sellmon was in prison, we construe the date he executed his notice of appeal as the earliest date on which it can be considered filed. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Fed. R.App. P. 4(c)(1).