Categories: Fourth Circuit Court of Appeals Opinions

WILSON v. WOOD, 294 Fed.Appx. 22 (4th Cir. 2008)

Keith D. WILSON, Petitioner-Appellant, v. Don WOOD, Superintendent; Theodis Beck, Secretary of Corrections, Respondents-Appellees.

No. 08-6752.United States Court of Appeals, Fourth Circuit.Submitted: September 16, 2008.
Decided: September 22, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the Middle District of North

Page 23

Carolina, at Durham. William L. Osteen, Jr., District Judge. (1:06-cv-00408-WO-WWD).

Keith D. Wilson, Appellant Pro Se. Clarence Joe DelForge, III, Assistant Attorney General, Raleigh, North Carolina, for Appellees.

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Keith D. Wilson seeks to appeal the district court’s order denying his second Fed.R.Civ.P. 60(b) motion for reconsideration of the district court’s order denying relief on his 28 U.S.C. § 2254 (2000) petition. The notice of appeal was received in the district court shortly after expiration of the appeal period. Because Wilson is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. Fed.R.App.P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The record is ambiguous as to when Wilson gave the notice of appeal to prison officials for mailing. Accordingly, we remand the case for the limited purpose of allowing the district court to obtain this information from the parties and to determine whether the filing was timely under Fed.R.App.P. 4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.

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