Johnson v. Galley , 257 F. App'x 634 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7352
DAVID S. JOHNSON,
Petitioner - Appellant,
versus
JON GALLEY; ATTORNEY GENERAL OF THE STATE OF
MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:06-cv-00973-WMN)
Submitted: November 21, 2007 Decided: December 6, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Remanded by unpublished per curiam opinion.
David S. Johnson, Appellant Pro Se. Edward John Kelley, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David S. Johnson seeks to appeal the district court’s
order dismissing his 28 U.S.C. § 2254 (2000) petition. The notice
of appeal was received in the district court shortly after
expiration of the appeal period, and it bore a notation that
Johnson had previously filed a notice of appeal on July 17, 2007,
within the appeal period. Because Johnson 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
conclusively reveal when Johnson gave his notice of appeal to
prison officials for mailing. Accordingly, we grant leave to
proceed in forma pauperis and 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
- 2 -