HUGHES v. WALRATH (2020)

Paul W. Hughes seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 petition. In a civil case, a party must file a notice of appeal within 30 days of the judgment or order being appealed, Fed. R. App. P. 4(a)(1)(A), 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). “[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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). An inmate's notice of appeal 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)(A); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

Here, the date on the notice of appeal and in the 28 U.S.C. § 1746 declaration in the informal brief filed in this court indicates that Hughes handed his notice of appeal to prison officials for mailing within the appeal period, but a date stamp on the envelope that contained the notice of appeal indicates that prison officials received the notice just outside the appeal period. We therefore remand the case for the limited purpose of allowing the district court to determine the date on which Hughes filed the notice of appeal under Rule 4(c)(1). 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Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.