Kevin Herriot v. Wayne McCabe, No. 20-6345 (4th Cir. 2020)

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The court issued a subsequent related opinion or order on September 21, 2021.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-6345 KEVIN HERRIOTT, Plaintiff - Appellant, v. WAYNE MCCABE, Warden, Kershaw Correctional Institution, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. David C. Norton, District Judge. (6:19-cv-00803-DCN) Submitted: July 23, 2020 Decided: July 28, 2020 Before WILKINSON, MOTZ, and RICHARDSON, Circuit Judges. Remanded by unpublished per curiam opinion. Kevin Herriott, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin Herriott seeks to appeal the district court’s order adopting the recommendation of the magistrate judge and dismissing as untimely Herriott’s 28 U.S.C. § 2254 (2018) petition. After noting his appeal, Herriott timely filed a Fed. R. Civ. P. 60(b)(1) motion, which remains pending in the district court. Consistent with Fobian v. Storage Tech. Corp., 164 F.3d 887, 890-91 (4th Cir. 1999), we order a limited remand and direct the district court to promptly consider the Rule 60(b)(1) motion. Once the court denies or indicates its intention to grant the motion, see id. at 891, the record, as supplemented, will then be returned to this court for further consideration. In ordering this remand, we express no opinion as to the merits of Herriott’s motion. REMANDED 2

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