Willie Coley v. Harold Clarke

609 F. App'x 158

Opinion

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Willie Coley seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. His notice of appeal was received in the district court shortly after expiration of the appeal period. Because Coley is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. See 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 Coley delivered the notice of appeal to prison officials for mailing. Accordingly, we grant leave to proceed in forma pauperis and 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.