Bell v. Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELTON GUY BELL, SR., 
Petitioner-Appellant,
v.  No. 02-6327
ROBERT SMITH, Superintendent,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-01-821-5-BR)
Submitted: May 16, 2002
Decided: July 1, 2002
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Elton Guy Bell, Sr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 BELL v. SMITH
OPINION
PER CURIAM:
Elton Guy Bell, Senior seeks to appeal the district court’s order
denying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 2001). For the reasons set forth below, we vacate and
remand for further proceedings. The district court, acting sua sponte,
determined from the face of Bell’s petition that his claims were barred
by the one-year limitations period set forth in 28 U.S.C.A. § 2244(d)
(West Supp. 2001), and dismissed the action without giving Bell
notice or an opportunity to respond.* At the time it issued its decision,
the district court did not have the benefit of our recent opinion in Hill
v. Braxton, 277 F.3d 701 (4th Cir. 2002). Hill v. Braxton now requires
the district court to provide such a warning "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 Bell cannot salvage his
petition, we grant a certificate of appealability, vacate the district
court’s order, and remand to the district court to provide Hawkins
with the notice and opportunity to respond to which he is now entitled
pursuant to Hill. 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
*Bell correctly observes that the district court’s calculation of the toll-
ing period did not account for this Court’s holdings in Spencer v. Sutton,
239 F.3d 626, 629 (4th Cir. 2001), and Hernandez v. Caldwell, 225 F.3d
435, 438 (4th Cir. 2000). Thus, on remand, the district court should allow
Bell the benefit of tolling during the entire pendency of his state collat-
eral proceedings.