Nesbitt v. Warden Tyger River Correctional Institution ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7626
BRIAN KEITH NESBITT,
Petitioner - Appellant,
v.
WARDEN TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Richard M. Gergel, District
Judge. (0:13-cv-02602-RMG)
Submitted: March 16, 2015 Decided: April 1, 2015
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Brian Keith Nesbitt, Appellant Pro Se. Donald John Zelenka,
Senior Assistant Attorney General, Kaycie Smith Timmons,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Brian Keith Nesbitt, a South Carolina prisoner, seeks to
appeal the district court’s order adopting the magistrate
judge’s recommendation and denying relief on his 28 U.S.C.
§ 2254 (2012) petition. Parties in a civil action in which the
United States is not a party have thirty days following entry of
the judgment in which to file a notice of appeal. Fed. R. App.
P. 4(a)(1)(A). “[T]he timely filing of a notice of appeal in a
civil case is a jurisdictional requirement.” Bowles v. Russell,
551 U.S. 205, 214 (2007).
Because Nesbitt is incarcerated, the notice of appeal is
considered filed on 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 Nesbitt delivered the notice of appeal
to prison officials for mailing. Accordingly, although we grant
Nesbitt’s motion to amend his informal brief, 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
3