United States v. McLaughlin ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-7658
JAMES MCLAUGHLIN, a/k/a Mac,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-94-47, CA-98-953-2)
Submitted: April 27, 1999
Decided: May 25, 1999
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James McLaughlin, Appellant Pro Se. Laura Marie Everhart, Assis-
tant United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
McLaughlin appeals the district court's order dismissing his motion
filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) as barred
by the one-year limitation period imposed by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (effective Apr. 24, 1996). Because we find that Johnson's
§ 2255 motion was timely filed, we vacate the district court's order
and remand for further proceedings.
The United States Supreme Court denied McLaughlin's petition for
a writ of certiorari on October 6, 1997, and McLaughlin mailed his
§ 2255 motion from prison on August 13, 1998. Because McLaughlin
filed* his § 2255 motion within a year after the Supreme Court denied
his petition for a writ of certiorari, we conclude that the district court
erred in dismissing McLaughlin's motion as untimely filed. See 28
U.S.C.A. § 2255; United States v. Simmonds , 111 F.3d 737, 744 (10th
Cir. 1997).
Accordingly, we grant a certificate of appealability on this issue,
vacate the district court's order denying McLaughlin's § 2255 motion,
and remand for further proceedings. 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.
VACATED AND REMANDED
_________________________________________________________________
*See Houston v. Lack, 487 U.S. 266 (1988).
2