United States of America v. Daniel Oriakhi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL ORIAKHI,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:92-cr-00283-MJG-1; 1:05-cv-02317-MJG)
Submitted: April 16, 2009 Decided: May 7, 2009
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Daniel Oriakhi, Appellant Pro Se. Lynne Ann Battaglia, OFFICE OF
THE UNITED STATES ATTORNEY, Robert Reeves Harding, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Oriakhi seeks to appeal the district court’s
order denying his motion for reconsideration of the denial of
his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. The notice of
appeal was received in the district court after expiration of
the appeal period. Because Oriakhi is incarcerated, the notice
is considered filed as of the date it was properly delivered to
prison officials for mailing to the court. Fed. R. App. P.
4(c)(1); Houston v. Lack, 487 U.S. 266 (1988). The record does
not conclusively reveal when Oriakhi gave the notice of appeal
to prison officials for mailing. Accordingly, we 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

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