UNPUBLISHED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 Decided: November 23, 2009
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. § 2254
(2006). The district court entered its order on
February 24, 2009. 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.
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district court may reopen the time to appeal. Because the
record is unclear as to when Yates received notice of 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
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