United States v. Turner

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 18, 2011
• Docket: 10-7311
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7311

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL DAVID TURNER,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, Senior District Judge. (2:07-cr-00040-JBF-TEM-1; 2:10-cv-00038-JBF)

Submitted: February 10, 2011 Decided: February 18, 2011

Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Remanded by unpublished per curiam opinion.

Michael David Turner, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

(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