Wilson v. Wood

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6752

KEITH D. WILSON,

Petitioner - Appellant,

v.

DON WOOD, Superintendent; THEODIS BECK, Secretary of Corrections,

Respondents - Appellees.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Jr., District Judge. (1:06-cv-00408-WO-WWD)

Submitted: September 16, 2008 Decided: September 22, 2008

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Remanded by unpublished per curiam opinion.

Keith D. Wilson, Appellant Pro Se. Clarence Joe DelForge, III, Assistant Attorney General, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Keith D. Wilson seeks to appeal the district court’s

order denying his second Fed. R. Civ. P. 60(b) motion for

reconsideration of the district court’s order denying relief on his

28 U.S.C. § 2254 (2000) petition. The notice of appeal was

received in the district court shortly after expiration of the

appeal period. Because Wilson 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 is ambiguous as

to when Wilson 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