United States v. Turner

411 F. App'x 665

Opinion

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Michael David Turner seeks to appeal the district court’s order denying his 28 U.S.C.A. § 2255 (West Supp.2010) motion. Although the notice of appeal is dated within the appeal period, it was received in the district court shortly after the appeal period expired. Because Turner 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 reveal when Turner 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 and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.