UNITED STATES v. GARZA (2019)

Ezequiel Gonzalez Garza seeks to appeal the district court's order dismissing his 28 U.S.C. § 2255 (2012) motion. Garza filed two notices of appeal, both of which were received in the district court shortly after expiration of the appeal period. Although Garza is incarcerated in Texas, both notices appear to have been mailed from Las Vegas, Nevada.

Because Garza is incarcerated, his notice of appeal is considered filed as of the date it was properly delivered to prison officials for mailing to the district court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). However, the record does not reveal whether Garza actually delivered the notices to prison officials for mailing to the court or if the notices were mailed by someone else. Furthermore, if Garza did deliver the notices to prison officials for mailing to the court, it is not clear whether he delivered them within the appeal period.

Accordingly, we remand the case for the limited purpose of allowing the district court to determine whether Garza delivered either notice of appeal to prison officials for mailing to the court, and, if he did, whether the notice can be considered timely under Rule 4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

PER CURIAM:

Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.