Waters v. Young ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES WILLIAM WATERS, JR., 
Petitioner-Appellant,
v.  No. 00-6229
WARDEN YOUNG,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-99-1482-AM)
Submitted: November 16, 2000
Decided: December 6, 2000
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
James William Waters, Jr., Appellant Pro Se. John H. McLees, Jr.,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 WATERS v. YOUNG
OPINION
PER CURIAM:
James William Waters, Jr., appeals the district court’s order deny-
ing relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994
& Supp. 2000). Waters has met the requirements for a certificate of
appealability by demonstrating that reasonable jurists would find it
debatable whether his petition states a valid claim of the denial of a
constitutional right and whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).
We have reviewed the record and the district court’s opinion and
find that the district court neglected to consider the effect of Waters’
direct appeal in calculating the date upon which Waters’ convictions
became final. Because Waters’ direct appeal was dismissed on Febru-
ary 24, 1998, his convictions became final on March 26, 1998. See
28 U.S.C.A. § 2244(d)(1)(A); Va. Sup. Ct. R. 5:14. Taking into
account that the one-year limitations period was tolled while Waters’
state habeas petition was pending, we conclude that Waters’ § 2254
petition was timely filed. In addition, we conclude that Waters has
made a sufficient showing under Slack that reasonable jurists would
find it debatable as to whether he has stated a valid claim of ineffec-
tive assistance of counsel in perfecting his state appeal.
Accordingly, we deny Waters’ motion for counsel, grant a certifi-
cate of appealability as to his ineffective assistance of counsel claim,
vacate the district court’s order, and remand for further proceedings.
We express no opinion as to the merits of Waters’ claims. We dis-
pense 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