McClintick v. Walker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHANNONE WAYNE MCCLINTICK,
Petitioner-Appellant,
v.
DEAN R. WALKER, Superintendent;
No. 98-7325
MICHAEL F. EASLEY, Attorney
General of the State of North
Carolina,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Graham C. Mullen, Chief District Judge.
(CA-97-316-1-MU)
Submitted: August 17, 1999
Decided: September 21, 1999
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles Robinson Brewer, Asheville, North Carolina, for Appellant.
Clarence Joe DelForge, III, OFFICE OF THE ATTORNEY GEN-
ERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appel-
lees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Shannone McClintick appeals the district court's order dismissing
his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.
1999), as untimely. For the reasons set forth below, we vacate and
remand.
In 1984, a North Carolina jury convicted McClintick of robbery,
burglary, and rape. The Supreme Court of North Carolina affirmed his
conviction in 1986. On December 11, 1996, McClintick filed a
motion for appropriate relief, which was denied on March 13, 1997.
On July 3, 1997, he filed a petition for certiorari in the North Carolina
Court of Appeals. That court issued an order on July 23, 1997, dis-
missing the petition "without prejudice to refile it in the appropriate
appellate court. See N.C.R. App. P. 21(b)." On July 29, 1997,
McClintick filed a petition for certiorari in the Supreme Court of
North Carolina. The Supreme Court of North Carolina denied the
petition on October 2, 1997.
McClintick filed his § 2254 petition on October 17, 1997. The dis-
trict court dismissed the petition as untimely under the one-year limi-
tations period in the Antiterrorism and Effective Death Penalty Act of
1996 based on its finding that McClintick's petition for certiorari filed
in the North Carolina Court of Appeals was improperly filed. This
appeal followed.
Title 28, United States Code, Section 2244(d)(2) provides that
"[t]he time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection." 28 U.S.C.A.§ 2244(d)(2) (West
Supp. 1999). The exception to the one-year limitations period encom-
passes "the entire period of state post-conviction proceedings, from
2
initial filing to final disposition by the highest state court (whether
decision on the merits, denial of certiorari, or expiration of the period
of time to seek further appellate review)." Taylor v. Lee, ___ F.3d ___
1999 WL 558417, at *3 (4th Cir. July 29, 1999). Therefore, the period
of time during which McClintick's application for relief was pending
under § 2244(d)(2) was from the date he filed his motion for appropri-
ate relief--December 11, 1996--through the date the Supreme Court
of North Carolina denied his petition for certiorari--October 2, 1997.
Accordingly, McClintick's § 2254 petition, filed on October 17, 1997,
was timely filed.
We grant a certificate of appealability as to the timeliness issue,
vacate the district court's order dismissing McClintick's § 2254 peti-
tion as untimely, and remand the matter to the district court for further
proceedings. We dispense 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
3