Anthony J. Ostrander v.  Ronald J. Angelone

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

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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 cor-
pus 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 Ost-
rander 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 timeli-
ness 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).
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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 Roa-
noke. 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 peti-
tion 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 Ost-
rander is not entitled to relief from the effect of the one-year limita-
tions 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
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