United States v. Marshburn ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7520
ALLEN STEPHON MARSHBURN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-90-33, CA-97-78-4-BO)
Submitted: September 22, 1998
Decided: November 19, 1998
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Allen Stephon Marshburn, Appellant Pro Se. Jane J. Jackson, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Allen Stephon Marshburn appeals from the district court's orders
dismissing his motions 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
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (effective Apr. 24,
1996), and denying his motion for reconsideration. Marshburn's con-
viction became final in April 1992. Because Marshburn's conviction
became final prior to implementation of the one-year limitation
period, Appellant had until April 23, 1997, in which to file his § 2255
motion. See Brown v. Angelone, 150 F.3d 370, 375-76 (4th Cir.
1998).
Marshburn's § 2255 motion was dated under the penalty of perjury
on April 22, 1997, and filed in the district court on April 25, 1997.
We conclude that Marshburn's motion was not time-barred. See
Houston v. Lack, 487 U.S. 266, 276 (1988) (notice of appeal is
deemed filed when it is delivered to prison officials); see also Burns
v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (applying Houston to the
filing of habeas petition); Lewis v. Richmond City Police Dep't, 947
F.2d 733, 735-36 (4th Cir. 1991) (applying Houston to filing of civil
rights complaint for statute of limitations purposes).
Accordingly, we grant a certificate of appealability on this issue,
vacate the district court's order, and remand for further proceedings.
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
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