United States v. Tony Efrem Turnage, 861 F.2d 266, 4th Cir. (1988)
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Scribd Government DocsUnited States v. Tony Efrem Turnage, 861 F.2d 266, 4th Cir. (1988)
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Scribd Government Docs861 F.
2d 266
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Tony Efrem TURNAGE, Defendant-Appellant.
No. 88-7660.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 30, 1988.
Decided Sept. 27, 1988.
Tony Efrem Turnage, appellant pro se.
Michael M. Middleton, Assistant U.S. Attorney, for appellee.
Before DONALD RUSSELL and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
PER CURIAM:
Tony Efrem Turnage, a federal prisoner, appeals the district court's denial of his
Fed.R.Crim.P. 35(b) motion. The motion was denied on April 8, 1988.
Turnage's notice of appeal was dated April 13, 1988, but it was not filed in
district court until April 25, 1988, seven days after the expiration of the 10-day
appeal period established by Fed.R.App.P. 4(b).
In Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428), the
Supreme Court held that a prisoner's notice of appeal is filed when he delivers
it to prison officials for forwarding to the district court. We cannot determine
from the records before us when Turnage gave his notice of appeal to prison
authorities. In addition, even if his notice of appeal was untimely, Turnage will
still be able to appeal if the district court finds that the tardy filing was the
result of excusable neglect. See United States v. Guiterrez, 556 F.2d 1217, 1218
(5th Cir.1977); cf. United States v. Reyes, 759 F.2d 351, 353 (4th Cir.), cert.
denied, 474 U.S. 857 (1985).
3
Accordingly, we remand the case to the district court for findings concerning
when Turnage's notice of appeal was given to prison authorities. If the notice
was filed with prison authorities after April 18, the court should also determine
whether Turnage is entitled to an extension of time to appeal. The district court
is authorized to obtain the evidence necessary to resolve these issues and to
make any necessary evidentiary rulings. The cases, as supplemented, then will
be returned to this Court for further consideration.
We dispense with oral argument because the facts and legal arguments are
adequately presented in the materials before the Court and oral argument would
not significantly aid the decisional process.
REMANDED.
