Moore v. Powell

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6320

JOSEPH FREDERICK MOORE,

Petitioner - Appellant,

versus

H. R. POWELL, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Richmond. Robert E. Payne, District Judge. (CA-97-595-3)

Submitted: August 27, 1998 Decided: September 17, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Joseph Frederick Moore, Appellant Pro Se. Leah Ann Darron, Assis- tant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant seeks to appeal the district court’s order denying

relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 1998), as untimely filed. Appellant’s conviction became final

before April 24, 1996, the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996. On August 5, 1997, Appellant

filed a § 2254 petition. The district court denied relief because

Appellant filed his petition outside the one-year limitation period

imposed by 28 U.S.C.A. § 2244(d) (West 1994 & Supp. 1998). See

Brown v. Angelone, ___ F.3d ___, Nos. 96-7173, 96-7208, 1998 WL

389030 (4th Cir. July 14, 1998) (holding that petitioner had until

April 23, 1997, in which to file a timely petition). Because

Appellant filed his § 2254 petition after April 23, 1997, and be-

cause his second state post-conviction petition did not toll the

limitation period, we find that the petition was untimely filed.

See 28 U.S.C.A. § 2244(d)(1), (2). Accordingly, we deny a certifi-

cate of appealability, deny Appellant’s motion to expedite the

appeal as moot, and dismiss the appeal. 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.

DISMISSED