Mario Hinojos, Jr. v. NFN Bush, Warden , 624 F. App'x 77 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6867
MARIO RAMOS HINOJOS, JR.,
Petitioner - Appellant,
v.
NFN BUSH, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:14-cv-02960-DCN)
Submitted: September 15, 2015 Decided: December 3, 2015
Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Mario Ramos Hinojos, Jr., Appellant Pro Se. Donald John
Zelenka, Senior Assistant Attorney General, Alphonso Simon, Jr.,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Ramos Hinojos, Jr., a South Carolina inmate, seeks to
appeal the district court’s order accepting the magistrate
judge’s recommendation and denying relief on Hinojos’s 28 U.S.C.
§ 2254 petition. In a federal habeas proceeding brought by a
state prisoner against state prison officials, parties have
thirty days following the entry of the district court’s final
judgment or order in which to file a notice of appeal. Fed. R.
App. P. 4(a)(1)(A). However, if a party moves for an extension
of time to appeal within 30 days after expiration of the
original appeal period and demonstrates excusable neglect or
good cause, a district court may extend the time to file a
notice of appeal. Fed. R. App. P. 4(a)(5)(A); Washington v.
Bumgarner, 882 F.2d 899, 900–01 (4th Cir. 1989).
The district court’s final judgment was entered on April
10, 2015. Hinojos filed his notice of appeal on May 16, 2015,∗
after the expiration of the 30-day appeal period but within the
excusable neglect period. Hinojos’s notice of appeal contained
language that can fairly be construed as a request for an
extension of time to appeal. Accordingly, we remand this case
∗See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding
that a pro se prisoner’s notice of appeal is filed when the
prisoner delivers it to prison authorities for forwarding to the
court clerk).
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to the district court for the limited purpose of determining
whether Hinojos has demonstrated excusable neglect or good cause
warranting an extension of the 30-day appeal period. The
record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
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