Perry v. Angelone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7616
CLARENCE PERRY,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director, Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-01-1050-AM)
Submitted: June 6, 2003 Decided: August 12, 2003
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Clarence Perry, Appellant Pro Se. Susan Mozley Harris, 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Unpublished opinions are not binding precedent in this circuit.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:
Clarence Perry seeks to appeal the district court’s order
denying relief on his petition filed under 28 U.S.C. § 2254 (2000).
The district court granted Perry’s motion to reopen the appeal
period under Fed. R. App. P. 4(a)(6), which permits a district
court to reopen the appeal period as long as the motion requesting
such relief is filed within 180 days after entry of the order or
seven days after “receiv[ing] notice of the entry, whichever is
earlier.” Because we must examine our jurisdiction sua sponte in
all cases, Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 635
(4th Cir.), cert. denied, 123 S. Ct. 695 (2002), and it is unclear
whether Perry’s motion was filed within the requisite time period,
we remand.
Here, the record is unclear as to when Perry received a copy
of the docket sheet on which the district court entered its order
denying his § 2254 petition. See Fed. R. App. P. 4(a)(7). Receipt
of the docket sheet provides adequate notice to open the seven-day
window in Rule 4(a)(6). See McDaniel v. Moore, 292 F.3d 1304, 1305
06 (11th Cir.), cert. denied, 123 S. Ct. 493 (2002). Because we
cannot determine on the record before us whether Perry received
notice on September 25, 2002, or on September 30, 2002, we remand
this case to the district court for the court to make a factual
finding as to when Perry received notice of the denial of his
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§ 2254 petition. The record, as supplemented, will then be returned
to this court for further review.
REMANDED
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