United States v. Sexton , 56 F. App'x 202 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6273
JERRY JEFFERSON SEXTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-97-9, CA-00-578-7)
Submitted: November 5, 2002
Decided: February 28, 2003
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Jerry Jefferson Sexton, Appellant Pro Se. Jean Barrett Hudson,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
2 UNITED STATES v. SEXTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jerry J. Sexton seeks to appeal the district court’s order denying
relief on his motion filed under 28 U.S.C. § 2255 (2000). Sexton
raised four claims in his original § 2255 motion, two Fourth Amend-
ment claims; one claim related to failure of the prosecution to disclose
evidence favorable to the defendant; and one claim related to the
denial of the effective assistance of counsel. After filing the § 2255
motion, Sexton filed a pleading regarding allegedly "new evidence"
about the credibility of a trial witness, his Fourth Amendment claims,
and a list of "Additional Issues Relating Back to Original Proceed-
ing," none of which relied on any of the allegedly new evidence.
The district court, sua sponte, determined that Sexton’s claims
were barred by the one-year limitations period set forth in 28 U.S.C.
§ 2244(d) (2000), and dismissed the action without giving Sexton
notice or an opportunity to respond. It also held that even if the
motion was timely, Sexton was not entitled to relief on the merits on
the Fourth Amendment claims and the claim regarding allegedly "new
evidence" about the credibility of a trial witness. We have reviewed
the record and conclude that Sexton has not made a substantial show-
ing of the denial of a constitutional right as to these claims. Accord-
ingly, we deny a certificate of appealability and dismiss the appeal as
to the Fourth Amendment claims and the claims regarding allegedly
"new evidence" about the credibility of a trial witness.
On the remaining claims, under Hill v. Braxton, 277 F.3d 701, 707
(4th Cir. 2002), which was decided after the district court’s decision
in this case, a district court, before sua sponte dismissing a § 2255
motion as untimely, must provide the movant with an opportunity to
respond "unless it is indisputably clear from the materials presented
to the district court that the petition is untimely and cannot be sal-
vaged by equitable tolling principles or any of the circumstances enu-
UNITED STATES v. SEXTON 3
merated in [the applicable statute]." Accordingly, as to Sexton’s claim
related to the failure of the prosecution to disclose evidence favorable
to the defendant, his claim of denial of the effective assistance of
counsel, and any "Additional Issues" which relate back to these
claims, see United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.
2000), we grant a certificate of appealability, vacate the district
court’s order, and remand to the district court to provide Sexton with
the notice and opportunity to respond to which he is now entitled pur-
suant to Hill. We deny Sexton’s motions for discovery and general
relief and deny his motion to place this case in abeyance. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED IN PART, AND VACATED AND
REMANDED IN PART