United States v. Burl , 81 F. App'x 443 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN ANTONIO BURL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior District
Judge. (CR-99-176, CA-03-444-02)
Submitted: October 20, 2003 Decided: November 20, 2003
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Remanded by unpublished per curiam opinion.
Melvin Antonio Burl, Appellant Pro Se. James Ashford Metcalfe,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Melvin Antonio Burl seeks to appeal the district court’s order
denying his 28 U.S.C. § 2255 (2000) motion as untimely. Burl’s
§ 2255 motion was received in the district court shortly after the
expiration of the one-year limitations period. Under Houston v.
Lack, 487 U.S. 266 (1988), and its progeny, a prisoner’s § 2255
motion is considered filed as of the date he delivers it to prison
officials for mailing. See Burns v. Morton, 134 F.3d 109, 112-13
(3d Cir. 1998). The record does not reveal when Burl delivered the
motion for mailing to the court. Accordingly, we remand the case
to the district court for the limited purpose of determining when
Burl delivered his motion to prison officials for mailing. The
record, as supplemented, will then be returned to this court for
further consideration. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
REMANDED
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