United States v. Michael McClain

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6489

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL PRESTON MCCLAIN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1; 7:14-cv-02671-HMH)

Submitted: August 6, 2015 Decided: August 17, 2015

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Remanded by unpublished per curiam opinion.

Michael Preston McClain, Appellant Pro Se. Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michael Preston McClain, a federal prisoner, seeks to

appeal the district court’s order granting the Government’s

motion for summary judgment and dismissing his 28 U.S.C. § 2255

(2012) motion to vacate. Parties in a civil action in which the

United States is a party have sixty days following entry of the

judgment in which to file a notice of appeal. Fed. R. App. P.

4(a)(1)(B). “[T]he timely filing of a notice of appeal in a

civil case is a jurisdictional requirement.” Bowles v. Russell,

551 U.S. 205, 214 (2007).

Because McClain is incarcerated, the notice of appeal is

considered filed on 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, 276 (1988). The record does not

conclusively reveal when McClain delivered 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(c)(1) and

Houston v. Lack. The record, as supplemented, will then be

returned to this court for further consideration.

REMANDED

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