United States v. Hawkins

104 F. App'x 321

Opinion

PER CURIAM.

Justin Hawkins seeks to appeal the district court’s order construing his motion filed under Fed.R.Civ.P. 60(b) as a successive motion under 28 U.S.C. § 2255 (2000), and dismissing it for lack of jurisdiction. 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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the notice is considered filed as of the date Hawkins properly delivered it to prison officials for mailing to the court. The record does not reveal if or when Hawkins 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