Joyner v. Angelone , 69 F. App'x 153 ( 2003 )


Menu:
  •                      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    Remanded by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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
    2
    

Document Info

Docket Number: 02-7309

Citation Numbers: 69 F. App'x 153

Judges: King, Motz, Per Curiam, Traxler

Filed Date: 6/26/2003

Precedential Status: Non-Precedential

Modified Date: 8/6/2023