United States v. Everette

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6279

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CALVIN LEE EVERETTE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (CR-01-68; CA-04-358)

Submitted: June 27, 2005 Decided: July 20, 2005

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Remanded by unpublished per curiam opinion.

Calvin Lee Everette, Appellant Pro Se. Rudolf A. Renfer, Jr., Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Calvin Lee Everette seeks to appeal the district court’s

order dismissing his motion under 28 U.S.C. § 2255 (2000). The

notice of appeal was received in the district court shortly after

expiration of the appeal period. Under Fed. R. App. P. 4(c)(1) and

Houston v. Lack, 487 U.S. 266 (1988), the notice is considered

filed as of the date Everette properly delivered it to prison

officials for mailing to the court. The record does not reveal if

or when Everette complied with the requirements of Fed. R. App. P.

4(c)(1). Accordingly, we remand the case for 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

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