Wendell Helfrick v. Benjamin Wright

Filing

OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Originating case number: 7:14-cv-00577-JPJ-RSB. Copies to all parties and the district court/agency. Mailed to: Wendell C. Helfrick. [999766242] [15-7889]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7889

WENDELL C. HELFRICK,
Petitioner - Appellant,
v.
BENJAMIN WRIGHT, Warden, River North Correctional Center;
MARK HERRING, Attorney General for the Commonwealth of
Virginia,
Respondents - Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
James P. Jones, District
Judge. (7:14-cv-00577-JPJ-RSB)

Submitted:

February 25, 2016

Before SHEDD and
Circuit Judge.

HARRIS,

Circuit

Decided:

Judges,

and

March 2, 2016

DAVIS,

Senior

Remanded by unpublished per curiam opinion.

Wendell C. Helfrick, Appellant Pro Se.
Elizabeth Catherine
Kiernan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wendell C. Helfrick, a Virginia inmate, seeks to appeal the
district court’s order dismissing his 28 U.S.C. § 2254 (2012)
petition.

The district court entered the order on September 23,

2015,

Helfrick

but

November 25.

did

not

file

his

notice

of

appeal

until

See Houston v. Lack, 487 U.S. 266, 276 (1988)

(holding that prisoner’s notice of appeal is deemed filed on
date he delivered it to prison officials for mailing to court).
Helfrick’s notice of appeal is clearly untimely.
App. P. 4(a)(1)(A).

See Fed. R.

In his notice, however, Helfrick moved the

court to excuse his late filing, stating that counsel did not
notify him of the order’s entry until November 24. *
Under

Fed.

R.

App.

P.

4(a)(6),

the

district

court

may

reopen the time to file an appeal for a 14-day period if: (1)
the moving party did not receive notice of the entry of the
order within 21 days after entry; (2) a motion to reopen the
appeal

period

is

filed

within

180

days

after

the

order

is

entered or within 14 days after the movant receives notice of
the

entry,

whichever

is

earlier;

and

(3)

no

party

would

be

prejudiced.

*

Helfrick supports this assertion with a copy of the letter
from counsel.

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We remand to the district court for the limited purpose of
determining whether Helfrick is entitled to have his time to
file an appeal reopened under Rule 4(a)(6).

The record, as

supplemented, will then be returned to this court for further
consideration.
REMANDED

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