Jeremiah Luke v. Carlton Joyner , 694 F. App'x 167 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6482
JEREMIAH LAMONT LUKE,
Petitioner - Appellant,
v.
CARLTON B. JOYNER,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cv-00168-FDW)
Submitted: July 27, 2017 Decided: August 1, 2017
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Remanded by unpublished per curiam opinion.
Jeremiah Lamont Luke, Appellant Pro Se. Clarence Joe DelForge, III, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremiah Lamont Luke seeks to appeal the district court’s order, entered on
December 5, 2016, dismissing his 28 U.S.C. § 2254 (2012) petition. Although the
docketed notice of appeal was received well outside the expiration of the appeal period,
Luke declares that he previously delivered his original notice of appeal to prison officials
for mailing on December 13, 2016, within the 30-day appeal period. Fed. R. App. P.
4(a)(1)(A). Because Luke 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, 276 (1988). The record does not conclusively
reveal when Luke delivered his earliest notice of appeal to prison officials for mailing,
whether the institution in which Luke is confined has a separate legal mail system, and if
so, whether Luke used that system to send his earliest notice of appeal. 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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