Burnice Hinnant, Jr. v. State of North Carolina ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7073
BURNICE ANTWON HINNANT, JR.,
Petitioner - Appellant,
v.
STATE OF NORTH CAROLINA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:15-hc-02283-FL)
Submitted: December 15, 2016 Decided: December 20, 2016
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Remanded by unpublished per curiam opinion.
Burnice Antwon Hinnant, Jr., Appellant Pro Se. Clarence Joe
DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Burnice Antwon Hinnant, Jr., seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2012)
petition. The notice of appeal was received in the district
court shortly after expiration of the appeal period. Because
Hinnant 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 reveal when Hinnant
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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