# Brown v. Osborne

> Court of Appeals for the Fourth Circuit · August 11, 1999

URL: https://www.frixlaw.com/law-library/cases/999421

## Case

- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** August 11, 1999
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNPUBLISHED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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/999421. Public record. Not legal advice.