Levon Todd v. Lewis Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed remanding case for limited purpose [4cca retains jurisdiction] Originating case number: 1:12-cv-00025-RJC Copies to all parties and the district court/agency. [999156340]. Mailed to: appellant. [13-6470]

Appeal: 13-6470

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6470

LEVON TODD,
Petitioner - Appellant,
v.
LEWIS SMITH,
Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.
Robert J. Conrad,
Jr., District Judge. (1:12-cv-00025-RJC)

Submitted:

July 18, 2013

Decided:

July 23, 2013

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Remanded by unpublished per curiam opinion.

Levon Todd, Appellant Pro Se.
Mary Carla Hollis, Assistant
Attorney General, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Levon Todd seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2254 (2006) petition.

Parties

are accorded thirty days after the entry of the district court’s
final judgment or order to note an appeal.
4(a)(1)(A).

Fed. R. App. P.

The district court may, however, extend the time

for filing a notice of appeal if a party so moves within thirty
days

after

expiration

of

the

original

appeal

period

and

demonstrates excusable neglect or good cause for the extension.
Fed. R. App. P. 4(a)(5)(A)(i)-(ii); Washington v. Bumgarner, 882
F.2d 899, 900–01 (4th Cir. 1989).
The

district

court’s

order

dismissing

Todd’s

§ 2254

petition was entered on the docket on January 14, 2013.

Thus,

Todd had until February 13, 2013 to file a notice of appeal.
The notice of appeal was filed, at the earliest, on February 23,
2013. *

Because Todd’s notice of appeal was filed beyond the

expiration

of

the

appeal

period

but

within

the

thirty-day

excusable neglect period, we construe as a timely request for an
*

Although Todd’s notice of appeal indicates it was signed
on February 23, 2013, Todd indicates in his informal brief that
his notice of appeal was placed in his institution’s internal
mailing system for mailing on March 7, 2013.
See Houston v.
Lack, 487 U.S. 266, 276 (1988) (holding that a pro se prisoner’s
notice of appeal is considered filed the moment it is delivered
to prison authorities for mailing to the court).

2

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extension
appeal.
for

the

of

Filed: 07/23/2013

time

the

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letter

accompanying

Todd’s

notice

of

Accordingly, we remand this case to the district court
limited

demonstrated

purpose

excusable

of

determining

neglect

or

extension of the appeal period.

good

whether

cause

Todd

warranting

has
an

The record, as supplemented,

will then be returned to this court for further consideration.

REMANDED

3