UNITED STATES of America, Plaintiff-Appellee, v. Rodney Maurice SAUNDERS, Defendant-Appellant, 325 F. App'x 221

PER CURIAM: Rodney Maurice Saunders seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West 2007) motion. The district court’s order was entered on September 2, 2008, 2008 WL 4133853. Saunders’ notice of appeal was filed on January 26, 2009. In his notice of appeal, Saunders states that he did not receive notice of the district court’s order until January 26, 2009. Where the United States is a party to a civil action, the parties are accorded sixty days after the entry of the district court’s final judgment or order to note an appeal, Fed. R.App.

P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5) or reopens the appeal period under Fed. R.App. P. 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)); see Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). Saunders’ notice of appeal is clearly untimely.

However, under Rule 4(a)(6), the district court may reopen the time to file an appeal if: (1) the moving party did not receive notice of the entry of the order within twenty-one days after entry; (2) the motion is filed within 180 days of entry of the judgment or order or within seven days of receiving notice from the court, whichever is earlier; and (3) no party would be prejudiced. We accordingly remand to the district court to determine whether Saunders is entitled under Rule 4(a)(6) to the reopening of the appeal period.

The record, as supplemented, will then be returned to this court for further consideration. REMANDED. For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. See Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).