Wheelous v. Garraghty

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAMON LOUIS WHEELOUS,
Petitioner-Appellant,
v.
No. 97-6859
DAVID GARRAGHTY, Warden;
ATTORNEY GENERAL OF THE STATE OF
VIRGINIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CA-97-444-2)
Submitted: August 11, 1998
Decided: September 2, 1998
Before WILKINS, NIEMEYER, and LUTTIG,
Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Damon Louis Wheelous, Appellant Pro Se.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Damon Louis Wheelous appeals from the district court's order dis-
missing his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998) as untimely filed. We vacate and remand the district
court's decision. The record does not reveal when Appellant delivered
his petition to the prison authorities for mailing to the court. Accord-
ingly, we grant a certificate of appealability and remand the case for
the district court to determine whether Wheelous' petition was deliv-
ered to prison authorities on or before April 23, 1997, under Houston
v. Lack, 487 U.S. 266 (1988). See Brown v. Angelone, ___ F.3d ___,
1998 WL 389030, at *6 (4th Cir. July 14, 1998).
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
2