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

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U.S. Court of Appeals for the Fourth Circuit - 870 F.2d 654 (4th Cir. 1989)

Submitted Jan. 31, 1989. Decided Feb. 24, 1989

Roger Dale Everhart, appellant pro se.

Barry Steven McNeill, Office of the Attorney General of North Carolina, for appellee.

Before DONALD RUSSELL, K.K. HALL, and MURNAGHAN, Circuit Judges.


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.



The 30-day period for filing an appeal expired on Saturday, October 8. Monday, October 10, was Columbus Day, a federal holiday. Accordingly, the time for filing a notice of appeal was extended to Tuesday, October 11. Fed. R. App. P. 26(a)