Levon Todd v. Lewis Smith, No. 13-6470 (4th Cir. 2013)
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The court issued a subsequent related opinion or order on March 11, 2014.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6470 LEVON TODD, Petitioner - Appellant, v. LEWIS SMITH, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Robert J. Conrad, Jr., District Judge. (1:12-cv-00025-RJC) Submitted: July 18, 2013 Decided: July 23, 2013 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Remanded by unpublished per curiam opinion. Levon Todd, Appellant Pro Se. Mary Carla Hollis, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Levon Todd seeks to appeal the district court s order denying relief on his 28 U.S.C. § 2254 (2006) petition. Parties are accorded thirty days after the entry of the district court s final judgment or order to note an appeal. 4(a)(1)(A). Fed. R. App. P. The district court may, however, extend the time for filing a notice of appeal if a party so moves within thirty days after expiration of the original appeal period and demonstrates excusable neglect or good cause for the extension. Fed. R. App. P. 4(a)(5)(A)(i)-(ii); Washington v. Bumgarner, 882 F.2d 899, 900 01 (4th Cir. 1989). The district court s order dismissing Todd s § 2254 petition was entered on the docket on January 14, 2013. Thus, Todd had until February 13, 2013 to file a notice of appeal. The notice of appeal was filed, at the earliest, on February 23, 2013. * Because Todd s notice of appeal was filed beyond the expiration of the appeal period but within the thirty-day excusable neglect period, we construe as a timely request for an * Although Todd s notice of appeal indicates it was signed on February 23, 2013, Todd indicates in his informal brief that his notice of appeal was placed in his institution s internal mailing system for mailing on March 7, 2013. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a pro se prisoner s notice of appeal is considered filed the moment it is delivered to prison authorities for mailing to the court). 2 extension appeal. for the of time the letter accompanying Todd s notice of Accordingly, we remand this case to the district court limited demonstrated purpose excusable of determining neglect or extension of the appeal period. good whether cause Todd warranting has an The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3
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