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294 F. App'x 22

Wilson v. Wood

U.S. Courts of Appeals

Decided September 22, 2008

U.S. Courts of Appeals · decided 2008-09-22

Applies 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Houston v. Lack

Decided 2008-09-22

PER CURIAM:

¶1Keith D. Wilson seeks to appeal the district court’s order denying his second Fed.R.Civ.P. 60(b) motion for reconsideration of the district court’s order denying relief on his 28 U.S.C. § 2254 (2000) petition. The notice of appeal was received in the district court shortly after expiration of the appeal period. Because Wilson is incarcerated, the notice is considered filed as of the date it was properly delivered to prison officials for mailing to the court. Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The record is ambiguous as to when Wilson gave the notice of appeal to prison officials for mailing. Accordingly, we remand the case for the limited purpose of allowing the district court to obtain this information from the parties and to determine whether the filing was timely under Fed. R.App. P. 4(c)(1) and Houston v. Lack. The record, as supplemented, will then be returned to this court for further consideration.

¶2REMANDED.

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