Joseph Mccoy Powell, Petitioner Appellant, v. United States of America, Respondent Appellee, 23 F.3d 402 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 23 F.3d 402 (4th Cir. 1994) Submitted: April 21, 1994. Decided: May 12, 1994

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-93-325-HC-H)

Joseph McCoy Powell, appellant Pro Se.



Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and CHAPMAN, Senior Circuit Judge.


Joseph McCoy Powell appeals from the district court's denial of relief on his 28 U.S.C. § 2254 (1988) petition. This notice of appeal was filed beyond the thirty-day appeal period set forth in Fed. R. App. P. 4(a) (1). However, Fed. R. App. P. 4(a) (6) provides that the district court may, in its discretion, order the appeal period reopened for fourteen days, if it appears that the party seeking to appeal did not receive notice of the entry of judgment within twenty-one days of its entry, and if no party would be prejudiced.

Here, the district court's order denying habeas relief was entered on June 4, 1993. Powell claims that he did not receive the order until October 21, 1993. He filed his notice of appeal on October 25, 1993. He claims that he had written to the district court requesting a copy of the order several times since June 1993.

Therefore, we grant a certificate of probable cause to appeal and remand this case to the district court for a determination of whether the period for appeal should be reopened under 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.