Joyner v. Angelone

ON PETITION FOR REHEARING
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7309
KENNETH BRIAN JOYNER,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-01-1189-AM)
Submitted: June 10, 2003 Decided: June 26, 2003
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Remanded by unpublished per curiam opinion.
Kenneth Brian Joyner, Appellant Pro Se. Donald Eldridge Jeffrey,
III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenneth Joyner seeks to appeal the district court’s order
denying relief on his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 (2000). The district court dismissed
Joyner’s petition in an order entered on June 17, 2002, and Joyner
mailed a misdirected notice of appeal to the United States Court of
Appeals for the Federal Circuit on July 15, 2002. Joyner discovered
his mistake, and on August 15, 2002, within the period of time
applicable to a determination of excusable neglect under Fed. R.
App. P. 4(a)(5), Joyner mailed a motion to this court seeking to
amend his notice of appeal to reflect the appropriate court. We
forwarded the motion to the district court. See Fed. R. App. P.
4(d). We construe this motion as one expressing Joyner’s desire to
preserve his appeal. See Meyers v. Stephenson, 781 F.2d 1036, 1038-
39 (4th Cir. 1986). Accordingly, because the district court has
not ruled on Joyner’s motion, we remand to the district court for
the limited purpose of permitting that court to determine whether
Joyner has shown excusable neglect warranting an extension of the
appeal period. The record, as supplemented, will then be returned
to this court for further consideration.
REMANDED
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