Roger Dale Everhart, Petitioner-appellant, v. Attorney General of North Carolina, Respondent-appellee, 870 F.2d 654 (4th Cir. 1989)

Roger Dale Everhart, a North Carolina prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 petition. His notice of appeal was dated October 3, 1988, but it was not received by the district court until October 19, eight days after the expiration of the appeal period established by Fed. R. App. P. 4(a) (1).¹ 

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 court. We cannot determine from the records before us when Everhart gave his notice of appeal to prison authorities or other federal officials, particularly U.S. post office employees. Accordingly, we grant a certificate of probable cause to appeal and remand the case to the district court. On remand, that court will obtain this information from the parties, making any necessary evidentiary rulings. The case, 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.