Joyner v. Angelone

ON PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 02-7309

KENNETH BRIAN JOYNER,

Petitioner - Appellant,

versus

RONALD J. ANGELONE, Director,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-01-1189-AM)

Submitted: June 10, 2003 Decided: June 26, 2003

Before MOTZ, TRAXLER, and KING, Circuit Judges.

Remanded by unpublished per curiam opinion.

Kenneth Brian Joyner, Appellant Pro Se. Donald Eldridge Jeffrey,
III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Kenneth Joyner seeks to appeal the district court’s order

denying relief on his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254 (2000). The district court dismissed

Joyner’s petition in an order entered on June 17, 2002, and Joyner

mailed a misdirected notice of appeal to the United States Court of

Appeals for the Federal Circuit on July 15, 2002. Joyner discovered

his mistake, and on August 15, 2002, within the period of time

applicable to a determination of excusable neglect under Fed. R.

App. P. 4(a)(5), Joyner mailed a motion to this court seeking to

amend his notice of appeal to reflect the appropriate court. We

forwarded the motion to the district court. See Fed. R. App. P.

4(d). We construe this motion as one expressing Joyner’s desire to

preserve his appeal. See Meyers v. Stephenson, 781 F.2d 1036, 1038-

39 (4th Cir. 1986). Accordingly, because the district court has

not ruled on Joyner’s motion, we remand to the district court for

the limited purpose of permitting that court to determine whether

Joyner has shown excusable neglect warranting an extension of the

appeal period. The record, as supplemented, will then be returned

to this court for further consideration.

REMANDED

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