United States v. McQueen ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6683
ANTHONY MCQUEEN, a/k/a Champ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-95-26-1, CA-98-201-7-BR)
Submitted: July 31, 2000
Decided: August 22, 2000
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Anthony McQueen, Appellant Pro Se. Robert Edward Skiver, Assis-
tant United States Attorney, Anne Margaret Hayes, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:
Anthony McQueen appeals the district court's order dismissing his
28 U.S.C.A. § 2255 (West Supp. 2000) motion as untimely filed
under the Antiterrorism and Effective Death Penalty Act. McQueen
raised the issue of equitable tolling in his response to the Govern-
ment's motion to dismiss the 28 U.S.C.A. § 2255 motion. The district
court did not specifically address the issue in its order. Subsequent to
the district court's order, this court decided that 28 U.S.C.A.
§ 2244(d) (West Supp. 2000) is a statute of limitation and is subject
to equitable tolling in limited circumstances. See Harris v. Hutchin-
son, 209 F.3d 325, 329-30 (4th Cir. 2000). We vacate the district
court's order and remand the case for the limited purpose of having
the court consider the tolling issues in light of Harris v. Hutchinson.
We grant a certificate of appealability. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
VACATED AND REMANDED
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