UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY J. OSTRANDER, 

Petitioner-Appellant,

v.  No. 01-7971

RONALD J. ANGELONE,

Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-01-801-7)

Submitted: March 20, 2002

Decided: August 26, 2002

Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. 

COUNSEL

Anthony J. Ostrander, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Anthony J. Ostrander appeals the district court’s order dismissing

as untimely his petition under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 2001), in which he asserted claims of ineffective assistance of

trial and appellate counsel.* Because the present record contains some

ambiguities regarding the dates Ostrander filed his state habeas corpus petitions, and because he submitted new evidence on appeal that

may call into question the district court’s conclusion that the petition

was untimely, we vacate and remand for further proceedings. 

Ostrander was convicted in Virginia state court of malicious

wounding on March 6, 1998. His direct appeal was finally denied on

March 3, 1999. He contended that he filed a state habeas petition in

the Circuit Court for the City of Roanoke, Virginia, which was denied

on May 2, 2001, and a state habeas petition in the Supreme Court of

Virginia, which was denied October 1, 2001. 

Ostrander’s § 2254 petition was filed on October 8, 2001. See

Houston v. Lack, 487 U.S. 266 (1988). The district court advised Ostrander that his petition appeared to be untimely, and directed him to

inform the court of the date upon which he filed the habeas petition

in the Supreme Court of Virginia. The court also directed Ostrander

to present any additional arguments or evidence regarding the timeliness of the petition. In response to this order, Ostrander averred that

he mailed the habeas petition to the Virginia Supreme Court "on or

about July 24, 2001." (R. 4). The district court denied the petition as

untimely. 

*Ostrander’s petition also alleged ineffective assistance of habeas

counsel and an erroneous ruling by the state habeas court as grounds for

relief. The district court found Ostrander was not entitled to relief on

these claims. See Pennsylvania v. Finley, 481 U.S. 551 (1987); Bryant

v. Maryland, 848 F.2d 492 (4th Cir. 1988). Ostrander does not raise these

issues on appeal, so he has waived appellate review of these claims. 4th

Cir. R. 34(b). 

2 OSTRANDER v. ANGELONE
On appeal, Ostrander claims his § 2254 petition was timely filed.

He argues the district court erred in failing to toll the running of the

one-year statute of limitations prescribed by 28 U.S.C.A. § 2244

(West 1994 & Supp. 2001), for the period during which his state

habeas petition was pending in the Circuit Court of the City of Roanoke. He submitted, as an attachment to his informal brief, a copy of

a receipt for a filing fee from the Roanoke Circuit Court dated March

3, 2000. The receipt bears notations including "FILING: WHC," and

"WRIT TAX." Although this receipt may be indicative of the date

Ostrander filed his petition in the Roanoke Circuit Court, we cannot

say for certain that this is the case. 

The district court’s order inquired as to the date Ostrander filed his

petition in the Virginia Supreme Court, but did not inquire as to when

he filed his petition in the City of Roanoke Circuit Court. Further, the

district court did not determine the date Ostrander’s state petition was

actually filed in the Supreme Court of Virginia. Moreover, if the petition to the Virginia Supreme Court was properly filed, see Va. Code

Ann. § 8.01-671(A)(i) (Michie 2000); Va. Code Ann. § 17,1-406(B)

(Michie 1999), the time between the Roanoke Circuit Court’s order

and the filing in the Supreme Court of Virginia should also be tolled.

See Carey v. Saffold, ___ U.S. ___, 2002 WL 1305725 (U.S. June 17,

2002) (No. 01-301); Allen v. Mitchell, 276 F.3d 183, 185 (4th Cir.

2001). Taking these periods of tolling into consideration, it is possible

that Ostrander’s petition is timely. 

Because we cannot say, based on the record before us, that Ostrander is not entitled to relief from the effect of the one-year limitations period, we vacate the district court’s order and remand 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

OSTRANDER v. ANGELONE 3