McClinton v. USA

Filing 12

ORDER re 11 Opinion - USCA remanding case for the limited purpose of allowing this Court to obtain information from the parties to determine whether Petitioner filed a notice of appeal timely under Fed. R. App. P. 4(c)(1) and Houston v. Lack, 487 U.S. 266 (1988). Parties shall file affidavits within 14 days of the date of this Order ( Affidavits due by 12/9/2024.). Signed by District Judge Frank D. Whitney on 11/22/24. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:23-cv-00364-FDW
(CRIMINAL CASE NO. 3:19-cr-00394-FDW-DSC-1)

ROBERT ALLEN MCCLINTON,

)
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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________ )

ORDER

THIS MATTER is before the Court on remand from the Court of Appeals for the Fourth
Circuit for the limited purpose of allowing this Court to obtain information from the parties to
determine whether Petitioner filed a notice of appeal timely under Fed. R. App. P. 4(c)(1) and
Houston v. Lack, 487 U.S. 266 (1988).1 [See Doc. 11].
On January 9, 2024, the Court entered an Order denying Petitioner’s motion for relief under
28 U.S.C. § 2255 and the Clerk entered Judgment thereon. [Docs. 6, 7]. On July 22, 2024, the
Court received a filing from Petitioner consisting of (1) a letter dated July 10, 2024, in which the
Petitioner states that he had previously written the Court in June 2024 asking for an update on his
appeal but that he had received no response and (2) a copy of his purported Notice of Appeal from
the Order denying his § 2255, which is dated March 5, 2024. [Docs. 8, 8-2]. These filings are
postmarked July 18, 2024. [Doc. 8-2]. The Court has no record of having received Petitioner’s
Notice of Appeal or the June 2024 letter. Petitioner, however, attests in his Notice of Appeal that

1

Under Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988), notices of appeal by pro se
prisoners are deemed filed at the time a petitioner delivers it to the prison authorities for forwarding to the
court clerk.

it was placed in the internal mailing system at Petitioner’s correctional facility on March 5, 2024.
[Doc. 8]. The Court will, therefore, require the parties to submit affidavits concerning the
following:
(1) Any explanation for a failure by Petitioner’s correctional facility to transmit
Petitioner’s Notice of Appeal or further information regarding the circumstances of its
depositing for mailing by Petitioner;
(2) Any logs or other records of prisoner mail that would or should contain a record of
Petitioner’s Notice of Appeal and/or June 2024 letter and whether such records
evidence Petitioner having deposited the Notice of Appeal for mailing;
(3) Any changes to prisoner mail procedure or efficacy between March 2024 and July 2024
that may have impacted the delivery of Petitioner’s Notice of Appeal to the Clerk of
Court and any records or other information that may inform the Court’s determination
of whether Petitioner timely filed a Notice of Appeal in this case.
Petitioner is advised that an affidavit is a written statement under oath; that is, a statement
prepared in writing and sworn to before a notary public. In the alternative, an unsworn statement,
made and signed under penalty of perjury, may also be submitted.
IT IS, THEREFORE, ORDERED that the parties shall file affidavits within 14 days of
the date of this Order in accordance with the terms of this Order. Failure of Petitioner to respond
in accordance with this Order will result in the Court determining on remand that Petitioner did
not timely file a notice of appeal in this matter.
IT IS SO ORDERED.
Signed: November 22, 2024