Tony A. Hawkins v.  EARNEST R. SUTTON, Superintendent

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TONY A. HAWKINS,
Petitioner-Appellant,
v. No. 01-7727 
EARNEST R. SUTTON, Superintendent,
Respondent-Appellee. 
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Graham C. Mullen, Chief District Judge.
(CA-01-161-5-2-MU)
Submitted: April 29, 2002
Decided: May 31, 2002
Before WILKINS, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Tony A. Hawkins, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

-- 1 of 2 --

OPINION
PER CURIAM:
Tony Hawkins 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
Hawkins’ petition that his claims were barred by the one-year limita-
tions period set forth in 28 U.S.C.A. § 2244(d) (West Supp. 2001),
and dismissed the action without giving Hawkins notice or an oppor-
tunity to respond. Our recent decision in Hill v. Braxton, 277 F.3d 701
(4th Cir. 2002), now requires the district court to provide such a warn-
ing "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 Hawkins cannot salvage
his petition, inasmuch as the relevant dates of his various state court
proceedings do not appear in the record, we grant a certificate of
appealability, vacate the district court’s order, and remand to the dis-
trict 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 ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED
2 HAWKINS v. SUTTON

-- 2 of 2 --