United States of America, Plaintiff-appellee, v. Eric Hebron, Defendant-appellant, 12 F.3d 206 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 12 F.3d 206 (4th Cir. 1993)

Dec. 7, 1993


Eric Hebron, appellant Pro Se.

Barry McCoy Tapp, Office of the United States Attorney, for appellee.

E.D. Va.

REMANDED.

Before PHILLIPS and WILLIAMS, C.J., and SPROUSE, J.

PER CURIAM:


OPINION

Eric Hebron, a federal prisoner, filed a 28 U.S.C.Sec. 2255 (1988) motion challenging his conviction. The district court entered an order dismissing the motion on January 13, 1993. Hebron did not file a notice of appeal until May 13, 1993, but noted in his appeal that he had not received a copy of the dismissal order until May 10, 1993, because of the prison mail system. He further asserted that the prison mail log would support this contention.

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 party would be prejudiced, the court may order the appeal period reopened for fourteen days. Hebron stated that he received notice of the judgment more than twenty-one days after its entry, and that prison records would support his claim. Therefore, we remand the case to the district court for a finding as to whether the appeal period should be reopened pursuant to Rule 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