United States v. Oriakhi

325 F. App'x 188

Opinion

PER CURIAM:

Daniel Oriakhi seeks to appeal the district court’s order denying his motion for reconsideration of the denial of his 28 U.S.C.A. § 2255 (West Supp.2008) motion. The notice of appeal was received in the district court after expiration of the appeal period. Because Oriakhi is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The record does not conclusively reveal when Oriakhi gave the 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.