United States of America v. Diijon Timmons

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7258
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DIIJON TIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:04-cr-00092-NKM-7; 3:08-cv-80066-NKM)
Submitted: April 23, 2012 Decided: May 7, 2012
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Diijon Timmons, Appellant Pro Se. Ronald Mitchell Huber,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Diijon Timmons seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2011)
motion. While we express no opinion on the merits of the
district court’s decision, we remand for further proceedings.
The district court’s final order was entered on
June 13, 2011. Timmons’ notice of appeal was due by August 12,
2011. See Fed. R. App. P. 4(a)(1)(B). The notice of appeal is
not dated. The envelope containing the notice of appeal bears a
stamped postmark of August 17, 2011. The notice of appeal was
filed on August 22, 2011.
“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” Bowles v. Russell, 551
U.S. 205, 214 (2007). A pro se prisoner’s notice of appeal is
deemed filed on the date when it is delivered to prison
officials for mailing. Fed. R. App. P. 4(c)(1); Houston v.
Lack, 487 U.S. 266, 276 (1988). Because the envelope containing
Timmons’ notice of appeal bears a postmark that, excluding the
intervening weekend, is only three days later than the appeal
period’s expiration date, we find it prudent to remand the case
to the district court for the limited purpose of determining
when Timmons delivered the notice of appeal to prison officials
for mailing.

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Leave to proceed in forma pauperis is granted. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before the
court and argument would not aid the decisional process.
REMANDED

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