United States v. Judlin Mortimer ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6321
JUDLIN MORTIMER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-176, CA-98-7)
Submitted: June 8, 1999
Decided: June 21, 1999
Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Judlin Mortimer, Appellant Pro Se. Robert Jack Higdon, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Judlin Mortimer appeals the July 14, 1998 district court
order construing his filing seeking to withdraw pending motions as
withdrawing his motion filed under Fed. R. Crim. P. 41(e).* After
Mortimer moved to withdraw pending motions, but before the court
entered the July 14 order, Mortimer informed the court that he did not
wish to withdraw the Rule 41(e) motion. Because Mortimer informed
the court that he did not wish to withdraw the Rule 41(e) motion, and
because pro se filings should be construed liberally, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), we vacate the July 14 order and
remand for further proceedings on the Rule 41(e) motion. We deny
Mortimer's motion to amend the record on appeal. 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 in the decisional process.
VACATED AND REMANDED
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*The July 14, 1998 order is marked as "filed" on July 13, 1998. The
district court's records show that it was entered on the docket sheet on
July 14, 1998. Pursuant to Rules 58 and 79(a) of the Federal Rules of
Civil Procedure, it is the date the order is entered on the docket sheet that
we take as the effective date of the district court's decision. See Wilson
v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
This appeal was originally construed as an appeal from the district
court's December 9, 1998 judgment denying Mortimer's 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1998) motion. However, Mortimer's district
court filings, including the August 3, 1998 "motion for appeal under Rule
4(a)," the August 10, 1998 "petition for permission to appeal," the Febru-
ary 10, 1999 "motion seeking disposition of defendant's Rule 41(e)
motion" and his informal brief filed in this court reveal that Mortimer
intended to appeal the order disposing of the Rule 41(e) motion.
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