Willie Coley v. Harold Clarke , 609 F. App'x 158 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6135
WILLIE COLEY,
Petitioner - Appellant,
v.
HAROLD CLARKE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen, District
Judge. (2:14-cv-00120-AWA-DEM)
Submitted: June 29, 2015 Decided: July 9, 2015
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Willie Coley, Appellant Pro Se. Lauren Catherine Campbell, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Coley seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 28 U.S.C. § 2254 (2012) petition. His notice of
appeal was received in the district court shortly after expiration
of the appeal period. Because Coley is incarcerated, the notice
is considered filed as of the date it was properly delivered to
prison officials for mailing to the court. See Fed. R. App. P.
4(c)(1); Houston v. Lack, 487 U.S. 266 (1988). The record does
not conclusively reveal when Coley delivered the notice of appeal
to prison officials for mailing. Accordingly, we grant leave to
proceed in forma pauperis and 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
2