United States of America, Plaintiff-appellee, v. Tony Efrem Turnage, Defendant-appellant, 861 F.2d 266 (4th Cir. 1988)

Tony Efrem Turnage, a federal prisoner, appeals the district court's denial of his Fed. R. Crim. P. 35(b) motion. The motion was denied on April 8, 1988. Turnage's notice of appeal was dated April 13, 1988, but it was not filed in district court until April 25, 1988, seven days after the expiration of the 10-day appeal period established by Fed. R. App. P. 4(b).

In Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428), the Supreme Court held that a prisoner's notice of appeal is filed when he delivers it to prison officials for forwarding to the district court. We cannot determine from the records before us when Turnage gave his notice of appeal to prison authorities. In addition, even if his notice of appeal was untimely, Turnage will still be able to appeal if the district court finds that the tardy filing was the result of excusable neglect. See United States v. Guiterrez, 556 F.2d 1217, 1218 (5th Cir. 1977); cf. United States v. Reyes, 759 F.2d 351, 353 (4th Cir.), cert. denied, 474 U.S. 857 (1985).

Accordingly, we remand the case to the district court for findings concerning when Turnage's notice of appeal was given to prison authorities. If the notice was filed with prison authorities after April 18, the court should also determine whether Turnage is entitled to an extension of time to appeal. The district court is authorized to obtain the evidence necessary to resolve these issues and to make any necessary evidentiary rulings. The cases, as supplemented, then will be returned to this Court for further consideration.

We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

REMANDED.