Douglas Brown, Jr. v. Harold Clarke

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6410
DOUGLAS MICHAEL BROWN, JR.,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director, VA Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:12-cv-00117-RBS-DEM)
Submitted: July 16, 2013 Decided: July 24, 2013
Before DAVIS, WYNN, and FLOYD, Circuit Judges.
Remanded by unpublished per curiam opinion.
Douglas Michael Brown, Jr., Appellant Pro Se. Robert H.
Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Michael Brown, Jr., seeks to appeal the
district court’s order adopting the recommendation of the
magistrate judge and dismissing Brown’s 28 U.S.C. § 2254 (2006)
petition. The district court’s judgment was entered on the
docket on December 21, 2012. The district court filed Brown’s
notice of appeal on March 4, 2013, outside of the thirty-day
appeal period. See Fed. R. App. P. 4(a)(1)(A). Although the
notice of appeal was stamped as received in the prison mail
system in March 2013, Brown asserts on appeal that he filed his
notice of appeal on January 10, 2013, well within the thirty-day
appeal period. Because Brown is incarcerated, the notice is
deemed filed on the date it is properly delivered to prison
officials for forwarding to the district court. See Fed. R.
App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 271-72 (1988).
The record does not conclusively reveal when Brown delivered the
notice of appeal to prison officials for mailing. Accordingly,
we remand the case for the limited purpose of allowing the
district court to make factual findings as to the date Brown
properly delivered his notice of appeal to prison officials for
filing. The record, as supplemented, will then be returned to
this court for further consideration.
REMANDED
2