United States v. Hall

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-7273 JAMES M. HALL, JR., Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CR-90-9, CA-97-309-3) Submitted: July 31, 1998 Decided: September 16, 1998 Before MURNAGHAN and NIEMEYER, Circuit Judges, and HALL, Senior Circuit Judge. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL James M. Hall, Jr., Appellant Pro Se. Stephen Wiley Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Appellant seeks to appeal the district court's order denying relief on his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). Appellant's conviction became final on December 2, 1991. On April 29, 1997, Appellant filed a § 2255 motion. The district court denied relief because Appellant filed his motion outside the one-year limitation period imposed by § 2255. Pursuant to our recent decision in Brown v. Angelone, ___ F.3d #6D6D 6D#, Nos. 96-7173, 96-7208, 1998 WL 389030 (4th Cir. July 14, 1998), Appellant had until April 23, 1997, in which to file a timely motion. Because Appellant signed his § 2255 motion on April 23, 1997, he may have given it to prison offi- cials by that date. Accordingly, we remand for the district court to determine when Appellant delivered his § 2255 motion to prison offi- cials for mailing under Houston v. Lack, 487 U.S. 266 (1988). If the court determines that the § 2255 motion was filed under Houston before April 24, 1997, then we instruct the court to consider the § 2255 motion on the merits under Brown v. Angelone. Accordingly, we grant a certificate of appealability, vacate the district court's order, and remand this case for consideration consistent with this opinion. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 2