United States of America, Plaintiff-appellee, v. Eddie Ray Tucker, Defendant-appellant, 1 F.3d 1235 (4th Cir. 1993)

Eddie Ray Tucker, a federal prisoner, filed a 28 U.S.C. § 2255 (1988) motion challenging his sentence. After the magistrate judge filed his report and recommendation, Tucker retained counsel. Counsel notified the court of his retention in his "Notice of Appeal of Magistrate Judge's Recommendation." After these objections were filed, the district court adopted the magistrate judge's report and recommendation and dismissed the motion. The docket sheet shows that the district court's order was entered on February 2, 1993, and that it was sent to "pet and USA."^*  Tucker's notice of appeal was filed April 15, 1993, more than sixty days after the entry of the final order. See Fed. R. App. P. 4(a) (1). However, Tucker's attorney states in the notice of appeal that he was not aware of the entry of the order until April 8, 1993.

Under Fed. R. App. P. 4(a) (6), if the district court finds that a party did not receive notice of the entry of a judgment within twenty-one days of its entry, and no one would be prejudiced, the court may order the appeal period reopened for fourteen days. Tucker's attorney states that he received notice of the judgment more than twenty-one days after its entry. However, the record is unclear as to whether Tucker's attorney properly notified the court of his appearance as counsel, and whether the court sent the final order to Tucker or his attorney. Therefore, we remand the case to the district court for a finding as to whether notice of the judgment was sent to the proper person, and for a determination of whether to reopen the appeal period pursuant to Fed. R. App. P. 4(a) (6).

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