Perry v. Angelone

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7616 CLARENCE PERRY, Petitioner - Appellant, versus RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CA-01-1050-AM) Submitted: June 6, 2003 Decided: August 12, 2003 Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges. Remanded by unpublished per curiam opinion. Clarence Perry, Appellant Pro Se. Susan Mozley Harris, 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 Unpublished opinions are not binding precedent in this circuit.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: Clarence Perry seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). The district court granted Perry’s motion to reopen the appeal period under Fed. R. App. P. 4(a)(6), which permits a district court to reopen the appeal period as long as the motion requesting such relief is filed within 180 days after entry of the order or seven days after “receiv[ing] notice of the entry, whichever is earlier.” Because we must examine our jurisdiction sua sponte in all cases, Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 635 (4th Cir.), cert. denied, 123 S. Ct. 695 (2002), and it is unclear whether Perry’s motion was filed within the requisite time period, we remand. Here, the record is unclear as to when Perry received a copy of the docket sheet on which the district court entered its order denying his § 2254 petition. See Fed. R. App. P. 4(a)(7). Receipt of the docket sheet provides adequate notice to open the seven-day window in Rule 4(a)(6). See McDaniel v. Moore, 292 F.3d 1304, 1305 06 (11th Cir.), cert. denied, 123 S. Ct. 493 (2002). Because we cannot determine on the record before us whether Perry received notice on September 25, 2002, or on September 30, 2002, we remand this case to the district court for the court to make a factual finding as to when Perry received notice of the denial of his 2 § 2254 petition. The record, as supplemented, will then be returned to this court for further review. REMANDED 3