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Perry v. Angelone, 02-7616 (2003)

Court: Court of Appeals for the Fourth Circuit Number: 02-7616 Visitors: 298
Filed: Aug. 12, 2003
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7616 CLARENCE PERRY, Petitioner - Appellant, versus RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CA-01-1050-AM) Submitted: June 6, 2003 Decided: August 12, 2003 Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges. Remanded by unpublished per curiam
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                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 02-7616



CLARENCE PERRY,

                                               Petitioner - Appellant,

             versus


RONALD   J.   ANGELONE,  Director,       Virginia
Department of Corrections,

                                                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-01-1050-AM)


Submitted:    June 6, 2003                   Decided:   August 12, 2003


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Remanded by unpublished per curiam opinion.


Clarence Perry, Appellant Pro Se. Susan Mozley Harris, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Clarence Perry seeks to appeal the district court’s order

denying relief on his petition filed under 28 U.S.C. § 2254 (2000).

The district court granted Perry’s motion to reopen the appeal

period under Fed. R. App. P. 4(a)(6), which permits a district

court to reopen the appeal period as long as the motion requesting

such relief is filed within 180 days after entry of the order or

seven days after “receiv[ing] notice of the entry, whichever is

earlier.”    Because we must examine our jurisdiction sua sponte in

all cases, Snowden v. CheckPoint Check Cashing, 
290 F.3d 631
, 635

(4th Cir.), cert. denied, 
123 S. Ct. 695
 (2002), and it is unclear

whether Perry’s motion was filed within the requisite time period,

we remand.

     Here, the record is unclear as to when Perry received a copy

of the docket sheet on which the district court entered its order

denying his § 2254 petition.   See Fed. R. App. P. 4(a)(7).   Receipt

of the docket sheet provides adequate notice to open the seven-day

window in Rule 4(a)(6).   See McDaniel v. Moore, 
292 F.3d 1304
, 1305

06 (11th Cir.), cert. denied, 
123 S. Ct. 493
 (2002).     Because we

cannot determine on the record before us whether Perry received

notice on September 25, 2002, or on September 30, 2002, we remand

this case to the district court for the court to make a factual

finding as to when Perry received notice of the denial of his




                                  2
§ 2254 petition. The record, as supplemented, will then be returned

to this court for further review.




                                                          REMANDED




                                3

Source:  CourtListener

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