Opinion

Brown v. Osborne

Court
Court of Appeals for the Fourth Circuit
Filed
Aug 11, 1999
Status
Unpublished
Cited by
0 cases
Authority
More cited than 28.0%

"pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated"

How later courts described this case

  • "pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated"

Written by the judges who cited it.

The opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEMARCUS M. BROWN,

Petitioner-Appellant,

v. No. 99-6476

KENNETH L. OSBORNE,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-99-189-7)

Submitted: July 13, 1999

Decided: August 11, 1999

Before MOTZ and KING, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

DeMarcus M. Brown, Appellant Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant DeMarcus Brown seeks to appeal the district court's

order summarily dismissing his petition filed under 28 U.S.C.A.

§ 2254 (West 1994 & Supp. 1999) as time-barred. We have reviewed

the record and the district court's opinion and remand.

Brown, a pro se litigant, asserts for the first time on appeal that

"good cause" prevented him from timely filing his petition. The dis-

trict court summarily dismissed Brown's § 2254 petition without

affording Brown an opportunity to present this argument. Liberally

construing Brown's notice of appeal and informal brief as a Fed. R.

Civ. P. 60(b) motion, we remand the case to the district court to deter-

mine whether "good cause" prevented Brown from timely filing his

§ 2254 petition. See Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir.

1994); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)

("pleadings should not be scrutinized with such technical nicety that

a meritorious claim should be defeated").

Accordingly, we grant a certificate of appealability and remand the

case to the district court for decision on Brown's Rule 60(b) motion.

We also deny Brown's request that "copies be made of the Appel-

lant's, Appellant Brief, and mailed to the opposing party and their

counsel." We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

REMANDED

2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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