Wilson v. Wood ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6752
KEITH D. WILSON,
Petitioner - Appellant,
v.
DON WOOD, Superintendent; THEODIS BECK, Secretary of
Corrections,
Respondents - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:06-cv-00408-WO-WWD)
Submitted: September 16, 2008 Decided: September 22, 2008
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Keith D. Wilson, Appellant Pro Se. Clarence Joe DelForge, III,
Assistant Attorney General, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith D. Wilson seeks to appeal the district court’s
order denying his second Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s order denying relief on 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. Because Wilson 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 is ambiguous as
to when Wilson 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(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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