United States v. Oriakhi

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8224

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANIEL ORIAKHI,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:92-cr-00283-MJG-1; 1:05-cv-02317-MJG)

Submitted: April 16, 2009 Decided: May 7, 2009

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

Remanded by unpublished per curiam opinion.

Daniel Oriakhi, Appellant Pro Se. Lynne Ann Battaglia, OFFICE OF THE UNITED STATES ATTORNEY, Robert Reeves Harding, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 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 (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