Felix v. Angelone ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DANIEL E. FELIX, 
Petitioner-Appellant,
v.
 No. 02-6270
RONALD ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-02-46-AM)
Submitted: February 13, 2003
Decided: March 6, 2003
Before WILKINS, Chief Judge, and MOTZ and
GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Daniel E. Felix, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 FELIX v. ANGELONE
OPINION
PER CURIAM:
Daniel E. Felix seeks to appeal the district court’s order denying
relief on his petition filed under 28 U.S.C. § 2254 (2000). For the rea-
sons set forth below, we vacate and remand for further proceedings.
The district court, acting sua sponte, determined from the face of
Felix’s petition that his 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 Felix notice or an opportunity to respond. The
district court did not have the benefit of our recent decision in Hill v.
Braxton, 277 F.3d 701 (4th Cir. 2002). After Hill, the district court
is required to provide such notice and opportunity to respond "unless
it is indisputably clear from the materials presented to the district
court that the petition is untimely and cannot be salvaged by equitable
tolling principles or any of the circumstances enumerated in
§ 2244(d)(1)." Id. at 707.
Because it is not "indisputably clear" that Felix cannot salvage his
petition, we grant his motion for a certificate of appealability, vacate
the district court’s order, and remand to the district court to provide
Felix with the notice and opportunity to respond to which he is now
entitled pursuant to Hill. We deny Felix’s motion for appointment of
counsel and motion to amend petition and for emergency relief. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
VACATED AND REMANDED