UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7311
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL DAVID TURNER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, Senior
District Judge. (2:07-cr-00040-JBF-TEM-1; 2:10-cv-00038-JBF)
Submitted: February 10, 2011 Decided: February 18, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Michael David Turner, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael David Turner seeks to appeal the district
court’s order denying his 28 U.S.C.A. § 2255 (West Supp. 2010)
motion. Although the notice of appeal is dated within the
appeal period, it was received in the district court shortly
after the appeal period expired. Because Turner is
incarcerated, the notice is considered filed as of the date it
was properly delivered to prison officials for mailing to the
court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266
(1988). The record does not reveal when Turner gave the notice
of appeal to prison officials for mailing. Accordingly, we
remand the case for the limited purpose of allowing the district
court to obtain this information from the parties and to
determine whether the filing was timely under Fed. R. App. P. 4
and Houston v. Lack. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
2
United States v. Turner
Combined Opinion