Michael Yates v. Keith Davis, No. 09-7474 (4th Cir. 2009)
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The court issued a subsequent related opinion or order on November 15, 2010.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7474 MICHAEL A. YATES, Petitioner Appellant, v. KEITH DAVIS, Warden, Respondent Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:08-cv-01284-TSE-IDD) Submitted: November 16, 2009 Before WILKINSON and Senior Circuit Judge. GREGORY, Decided: Circuit November 23, 2009 Judges, and HAMILTON, Remanded by unpublished per curiam opinion. Michael A. Yates, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael A. Yates seeks to appeal the district court s order dismissing his petition filed pursuant to 28 U.S.C. ยง 2254 (2006). The February 24, 2009. district court entered its order on We deem Yates to have filed his notice of appeal no later than July 30, 2009, and perhaps earlier. * Yates argues that he did not receive notice of the district court s order until July 20, 2009. Parties are accorded thirty days after the entry of the district court s final judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). This appeal period is mandatory and jurisdictional. Browder v. Dir., Dep t of Corr., 434 U.S. 257, 264 (1978) (internal quotation marks and citation omitted); see Bowles v. Russell, 551 U.S. 205, 214 (2007). Yates s notice of appeal was filed well beyond the thirty-day appeal period. However, * under Rule 4(a)(6), the Pursuant to Houston v. Lack, 487 U.S. 266, 276 (1988), and Fed. R. App. P. 4(c), Yates s notice of appeal is deemed filed as of the date he properly delivered it to prison officials for mailing. Although that date cannot be discerned from the existing record, it had to have occurred no later than July 30, 2009, the date the envelope containing Yates s notice of appeal was postmarked. 2 district record court is may unclear reopen as to the time when Yates to appeal. received Because notice of the the district court s dismissal of his action, and when he delivered his notice of appeal to prison officials, we remand this case to the district court for the limited purposes of determining when Yates received notice of the district court s entry of its final order, when Yates delivered his notice of appeal to prison officials, and whether he is entitled to a reopening of the appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3
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