Smith v. State of Mississippi ( 2021 )

Case: 21-60628 Document: 00516093587 Page: 1 Date Filed: 11/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 15, 2021
No. 21-60628 Lyle W. Cayce
Clerk
Brandon P. Smith,
Petitioner—Appellant,
versus
State of Mississippi,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:19-CV-122
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
This court must examine the basis of its jurisdiction, on its own
motion if necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir.
2000). Pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate
Procedure 4(a)(1)(A), the notice of appeal in a civil case must be filed within
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60628 Document: 00516093587 Page: 2 Date Filed: 11/15/2021
No. 21-60628
thirty days of entry of judgment. A prisoner’s pro se notice of appeal is timely
filed if deposited in the institution’s internal mail system on or before the last
day for filing. See Fed. R. App. P. 4(c)(1).
In this habeas corpus case, the final judgment denying the petition was
entered December 6, 2019. The order granting in part and denying in part
petitioner’s motion for reconsideration was entered June 5, 2020. Therefore,
the final day for filing a timely notice of appeal was Monday, July 6, 2020,
because the thirtieth day was a Sunday. See Fed. R. App. P. 26(a)(1)(C).
The petitioner’s pro se notice of appeal is not dated. It was filed on
August 11, 2021, more than a year after the final date for a timely appeal. As
it cannot be determined from the record in this case whether the petitioner
delivered the notice of appeal to prison officials for mailing on or before July
6, 2020, the case must be remanded for the district court to make this
determination in the first instance. See Thompson v. Montgomery, 853 F.2d
287, 288 (5th Cir. 1988) (per curiam). Upon making this determination, the
district court shall return the case to this court for further proceedings, or
dismissal, as may be appropriate.
REMANDED for proceedings consistent with this opinion.
2