UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN PATRICK MCSHEFFREY,

Petitioner-Appellant,

v.

RONALD J. ANGELONE, Director of

the Virginia Department of

No. 98-6519

Corrections,

Respondent-Appellee,

and

COMMONWEALTH OF VIRGINIA,

Respondent.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

David G. Lowe, Magistrate Judge.

(CA-97-466)

Submitted: February 2, 1999

Decided: February 23, 1999

Before ERVIN and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

John Patrick McSheffrey, Appellant Pro Se. Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

John Patrick McSheffrey appeals the dismissal of his 28 U.S.C.A.

§ 2254 (West 1994 & Supp. 1998) petition as untimely. This appeal

presents the question of whether a second or subsequent petition for

state postconviction relief, filed according to the procedural rules of

the state, constitutes a "properly filed application" for the purpose of

tolling the statute of limitations, regardless of the underlying merits

of the state petition. Because we conclude that it does, we grant a certificate of appealability, vacate the order of the district court, and

remand this matter for further consideration.

In 1990, McSheffrey was sentenced in the Norfolk Circuit Court in

Virginia, after pleading guilty to possession with intent to distribute

cocaine. McSheffrey did not appeal. Instead, he filed a petition for a

state writ of habeas corpus. After relief was denied, McSheffrey filed

another habeas petition in January 1996, which was dismissed on

appeal on December 5 as procedurally defaulted. 1

McSheffrey then submitted a federal habeas petition dated May 5

and filed June 18, 1997. The district court found that the pendency of

McSheffrey's successive state petition did not toll the federal habeas

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1 The district court stated that McSheffrey filed three petitions for a

state writ of habeas corpus. McSheffrey contends that the petition

deemed by the district court to be his "first" petition actually addressed

a different conviction, and thus, he has only filed two state petitions

regarding the instant conviction. Although the "first" petition is not

included in the case file, McSheffrey's allegations appear to be supported

by the record. (See R. Vol. 3 at 26 (Norfolk Circuit Court decision of

April 5, 1996, listing only one previous petition)). Nonetheless, even a

second petition would be barred as successive under Virginia state rules,

see Va. Code Ann. § 8.01-654(B)(2) (Michie Supp. 1998), so any error

on this issue is irrelevant.

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one-year statute of limitations, which was enacted in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.

104-132, 110 Stat. 1214 (effective Apr. 24, 1996). Accordingly, the

district court found that McSheffrey's federal petition was untimely

filed outside the applicable grace period, which expired on April 23,

1997.2 See Brown v. Angelone , 150 F.3d 370, 375-76 (4th Cir. 1998)

(holding that prisoners whose convictions became final before the

AEDPA had one year from the effective date of the AEDPA to file

a timely petition). McSheffrey appeals.

The AEDPA amended 28 U.S.C. § 2244 (1994) to require that

§ 2254 petitions be filed no later than one year after the completion

of state court direct review or the expiration of time to seek such

review. See 28 U.S.C.A. § 2244(d)(1)(A) (West Supp. 1998). The

time during which a "properly filed application for State postconviction or other collateral review" is pending does not count

toward the period of limitation. 28 U.S.C.A. § 2244(d)(2) (West

Supp. 1998).

McSheffrey's conviction became final in 1990, when his time for

filing an appeal expired. Where a habeas corpus petition is filed by

a petitioner whose conviction became final before the AEDPA's

enactment, the petition is considered timely when it is filed on or

before April 23, 1997, that is, within one year after the AEDPA was

enacted. See Brown, 150 F.3d at 375-76. McSheffrey filed his petition

nearly two months after this deadline, and therefore, it was properly

dismissed unless the filing of his successive state habeas petition--

filed on January 22, 1996, and finally denied on December 5, 1996--

tolled the filing requirement. The district court found that, because

McSheffrey's successive petition was dismissed as procedurally

barred by the state court, the petition was not"properly filed" within

the meaning of the AEDPA. We disagree.

A state application is properly filed if it complies with the state

procedural requirements for successive collateral attacks on a conviction, such as timeliness and proper place of filing. It is unnecessary

for a federal court to examine the merits of the state application or to

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2 The case was decided by a magistrate judge pursuant to the parties'

consent. See 28 U.S.C. § 636(c)(1) (1994).

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determine whether a procedural bar is applicable. See Lovasz v.

Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998). Thus, because Appellees do not contend that McSheffrey failed to comply with any of the

procedural requirements for filing a collateral attack in Virginia state

court, we find that his January 1996 petition was"properly filed."

McSheffrey's one-year grace period was, therefore, tolled until

December 5, 1996, and he had until December 4, 1997, to file his federal habeas petition. His § 2254 petition was filed on June 18, 1997,

well within the period allowed by the AEDPA.

Because we find that McSheffrey's habeas petition was timely

filed, we grant a certificate of appealability, vacate the order of the

district court, and remand for further consideration. We deny McSheffrey's motion to order Appellees to file an informal brief. 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

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