United States v. Kyheim Tucker , 539 F. App'x 166 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KYHEIM DELANGO TUCKER, a/k/a Paso,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
Chief District Judge. (4:09-cr-00081-RBS-FBS-11; 4:13-cv-00033-
RBS)
Submitted: August 29, 2013 Decided: September 4, 2013
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Kyheim Delango Tucker, Appellant Pro Se. Eric Matthew Hurt,
Lisa Rae McKeel, Brian James Samuels, Howard Jacob Zlotnick,
Assistant United States Attorneys, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kyheim Delango Tucker, a federal prisoner, seeks to
appeal the district court’s order dismissing as untimely his
28 U.S.C.A. § 2255 (West Supp. 2013) motion. In a civil case in
which the United States or its officer or agency is a party, the
notice of appeal must be filed no more than sixty days after the
entry of the district court’s final judgment or order, 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 district court’s order was entered on the docket
on April 19, 2013. The notice of appeal was filed on June 22,
2013, * after the expiration of the sixty-day appeal period but
within the thirty-day excusable neglect period. In the notice
of appeal, Tucker acknowledges that his appeal is untimely but
requests that the notice be “grant[ed]” because he was
experiencing money “problems” and awaiting a determination by
prison authorities as to whether he qualified as indigent and
eligible to receive postage to mail the notice to the court.
*
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266,
276 (1988).
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We liberally construe Tucker’s statements as
requesting an extension of the appeal period under Fed. R. App.
P. 4(a)(5). Washington v. Bumgarner, 882 F.2d 899, 900–01
(4th Cir. 1989); Myers v. Stephenson, 748 F.2d 202, 204
(4th Cir. 1984). Because the district court has not ruled on
the request for extension, we remand the case to the district
court for the limited purpose of determining whether Tucker has
demonstrated excusable neglect or good cause warranting an
extension of the sixty-day appeal period. The record, as
supplemented, will then be returned to this court for further
consideration.
REMANDED
3