                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JOHN ANDREW WRIGHT, JR.,             
             Petitioner-Appellant,
                 v.
PATRICK CONROY, Warden; ATTORNEY               No. 02-6296
GENERAL FOR THE STATE OF
MARYLAND,
            Respondents-Appellees.
                                     
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
           William M. Nickerson, Senior District Judge.
                       (CA-01-1355-WMN)

                      Submitted: May 22, 2002

                      Decided: June 21, 2002

    Before MICHAEL, KING, and GREGORY, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

John Andrew Wright, Jr., Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, Mary Ann Rapp Ince, OFFICE OF THE ATTOR-
NEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appel-
lees.
2                         WRIGHT v. CONROY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   John Andrew Wright, Jr., appeals the district court’s orders dis-
missing his petition for writ of habeas corpus under 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2001), and denying his Fed. R. Civ. P.
59(e) motion for reconsideration. For the reasons set forth below, we
grant a certificate of appealability, vacate the district court’s orders,
and remand for further proceedings.

   A review of the record discloses that, in response to Wright’s
§ 2254 petition, Appellees filed an Answer and seventeen exhibits.
Appellees served a copy of its Answer on Wright as required by Fed.
R. Civ. P. 5(a). However, the exhibits do not bear a certificate of ser-
vice, and there is no evidence in the record that they were served on
Wright. Wright, who was proceeding in forma pauperis, objected to
the Appellees’ failure to serve copies of these exhibits and moved for
copies of the exhibits at the government’s expense. Upon consider-
ation of these pleadings and the Appellees’ exhibits, the district court
denied Wright’s § 2254 motion. The court denied Wright’s objection
and motion for copies of the exhibits. The court further denied
Wright’s Rule 59(e) motion, in which he sought copies of the exhibits
and an opportunity to respond to them, reasoning that Wright was not
entitled to copies of transcripts at government expense and only two
of the exhibits would have had any bearing on Wright’s response.

   We find that, because the district court considered evidence outside
the pleadings, as evidenced by the court’s citation of twelve of the
exhibits in its opinion, Appellees’ Answer was in fact a motion for
summary judgment. See Fed. R. Civ. P. 12(b), 56. A motion for sum-
mary judgment may not be granted unless proper notice is provided
under Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). Rose-
boro prohibits the entry of summary judgment based on a pro se
party’s failure to submit affidavits supporting his allegations unless
                          WRIGHT v. CONROY                            3
that party is given a reasonable opportunity to file counter-affidavits
or other appropriate materials and is informed that failure to file such
a response may result in dismissal of the action. Id. Wright was not
afforded the opportunity to respond to the Appellees’ motion with any
affidavits in support of his ineffective assistance of counsel claims.
The district court granted Appellees’ motion, in part, based on
Wright’s failure to produce such supporting evidence. On this record,
we cannot find that the district court’s failure to provide Roseboro
notice was harmless error. See Fed. R. Civ. P. 56(e), 61.

   We therefore vacate the district court’s order dismissing Wright’s
§ 2254 petition and remand this case to the district court with instruc-
tions to provide Wright with the notice and opportunity to respond to
which he is entitled. In addition, the district court should ensure that
Wright is served with copies of all of the Appellees’ exhibits so that
he may consider those exhibits in preparing his response. We dis-
pense 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. The reason for remand is
entirely procedural and is unrelated to the merits of the case.

                                        VACATED AND REMANDED
