United States v. Hawkins

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-7690

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JUSTIN HAWKINS,

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-98-16)

Submitted: June 9, 2004 Decided: August 11, 2004

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

Remanded by unpublished per curiam opinion.

Justin Hawkins, Appellant Pro Se. Christine Witcover Dean, 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Unpublished opinions are not binding precedent in this circuit.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:

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

(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

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