United States v. Velez

PER CURIAM:

Enrique Velez seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 (2000) motion. For the reasons that follow, we remand the petitioner’s case to the district court.

Parties are accorded sixty days after the entry of the district court’s judgment or final order to file a notice of appeal when the United States is a party, see Fed. R.App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5) or reopens the appeal period under Fed. R.App. P. 4(a)(6). The appeal period is “mandatory and jurisdictional.” Panhorst v. United States, 241 F.3d 367, 369-70 (4th Cir.2001) (quoting Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)).

The district court entered its order dismissing Velez’s motion on October 29, 2003. Velez alleges he filed a certificate of appealability in December 2003, as evidenced by a photocopy of the signed return receipt he mailed to the Clerk of Court for the Eastern District of North Carolina. In June 2004, Velez contacted the Clerk of Court for the Fourth Circuit Court of Appeals and inquired as to whether it had received his request for a certificate of appealability because he had not received any correspondence from the district court. Finding that the district court’s docket did not reveal that Velez had filed a notice of appeal, the Clerk of Court for the Fourth Circuit directed the district court to process Velez’s request as a notice of appeal.

We now remand the case to the district court for a determination as to whether Velez actually filed a document in the district court within the requisite time period and, if so, the contents of such document. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

REMANDED