Robert Walsh v. US, No. 11-6304 (4th Cir. 2011)

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The court issued a subsequent related opinion or order on November 10, 2011.
 The court issued a subsequent related opinion or order on April 13, 2012.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6304 ROBERT LEE WALSH, Petitioner Appellant, v. UNITED STATES OF AMERICA; DISTRICT COURT, Clerk of Charleston Division; MILDRED L. RIVERA, Warden FCI Estill, Respondents Appellees. Appeal from the United States District Court for the District of South Carolina, at Anderson. Richard Mark Gergel, District Judge. (8:10-cv-00085-RMG) Submitted: June 16, 2011 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, June 21, 2011 and HAMILTON, Remanded by unpublished per curiam opinion. Robert Lee Walsh, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Lee Walsh seeks to appeal the district court's order adopting the magistrate judge s recommendation to deny his 28 U.S.C. ยง 2241 (2006) petition. its order However, denying Walsh Walsh s did not The district court entered petition file a on October notice of 28, 2010. appeal until February 23, 2011, * in which he indicated that he did not receive notice of the order to be appealed until the day before. Where, as here, a pro se appellant files an untimely notice of appeal offering some excuse for its untimeliness, that notice is properly construed as a motion to reopen the time to note an appeal under Fed. R. App. P. 4(a)(6). See United States v. Feuver, 236 F.3d 725, 729 n.7 (D.C. Cir. 2001). Accordingly, we remand the case to the district court for the court to determine whether Walsh can satisfy the requirements of Rule 4(a)(6). See Ogden v. San Juan Cnty., 32 F.3d 452, 454 (10th Cir. 1994). The record, as supplemented, will then be returned to this court for further consideration. REMANDED * For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988). 2

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