James Earl Parrish, Petitioner-appellant, v. David A. Williams, Warden, Respondent-appellee, 948 F.2d 1282 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 948 F.2d 1282 (4th Cir. 1991) Submitted July 12, 1991. Decided October 25, 1991. As Amended Nov. 4, 1991

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, District Judge. (CA-90-709-R)

James Earl Parrish, appellant pro se.

Richard Bain Smith, Assistant Attorney General, Richmond, Va., for appellee.

W.D. Va.

REMANDED.

Before WIDENER, K.K. HALL and MURNAGHAN, Circuit Judges.

OPINION

PER CURIAM:


James Earl Parrish noted an appeal outside the thirty-day appeal period established by Fed. R. App. P. 4(a) (1). Because the district court docket failed to reveal that a motion for extension of time had been filed within the additional thirty-day period provided by Fed. R. App. P. 4(a) (5), this Court denied a certificate of probable cause and dismissed the appeal for want of jurisdiction on August 8, 1991. Parrish then filed a motion for rehearing asserting that a timely motion for extension of time had been filed with the district court. In its answer, the state conceded that it received notice of such a motion and other evidence indicated that Parrish gave prison authorities a legal document on the date that the motion for extension of time was supposedly filed.

The district court has no record of Parrish's motion for an extension of time, but all other facts point to the timely filing of such a motion. We therefore vacate our opinion of August 8, 1991, grant the motion for rehearing, and remand this case to the district court for consideration of the extension request. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

REMANDED.