                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-7521



JAMES GUY ARNOLD,

                                            Petitioner - Appellant,

          versus


C. MARK HOFFE; OFFICE OF THE ATTORNEY GENERAL,

                                           Respondents - Appellees.


Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CA-01-11-3)


Submitted:   January 31, 2005              Decided:   March 28, 2005


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


James Guy Arnold, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            James Guy Arnold, formerly a West Virginia prisoner,

appeals the district court’s order denying his motion pursuant to

Fed. R. Civ. P. 60(b) for relief from the district court’s prior

orders dismissing his petition under 28 U.S.C. § 2254 (2000) and

denying his motion for reconsideration.                Having previously granted

a certificate of appealability, see 28 U.S.C. § 2253(c) (2000), we

now find the district court abused its discretion by denying

Arnold’s motion.1        Accordingly, we vacate the order denying the

motion and remand with instructions.

            Arnold filed his petition on February 26, 2001, and the

district court first dismissed the petition on April 17, 2001.

Arnold appealed, and we granted a certificate of appealability,

vacated the district court’s dismissal order, and remanded for

further factual findings.            See Arnold v. Hoffe, No. 01-6863, 2001

WL    141735,    **1   (4th   Cir.    Nov.      20,   2001)   (unpublished).         We

determined that while the record showed Arnold was no longer in

prison pursuant to his state conviction when he filed his petition,

the    record    was   insufficient        to   determine     whether   he     was   on

probation       or   parole   for    the   state      conviction   at   that    time.

Accordingly, we could not determine whether Arnold was subject to



       1
      We note that because the motion sought a remedy for a defect
in the collateral review process, it was “a proper Rule 60(b)
motion” and not a successive habeas application.       See United
States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003).

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“restraints on [his] liberty . . . not shared by the public

generally” for purposes of determining whether he was “in custody”

under § 2254.   See Jones v. Cunningham, 371 U.S. 236, 240 (1963);

see also Garlotte v. Fordice, 515 U.S. 39, 41 (1995) (petitioner

receiving consecutive sentences “remains ‘in custody’ under all of

his sentences until all are served”); United States v. Hillary, 106

F.3d 1170, 1172 (4th Cir. 1997) (“for jurisdictional purposes,

consecutive sentences must be viewed in the aggregate”). Moreover,

we directed the court to consider the merits of Arnold’s petition

if it found he was “in custody” within the meaning of the statute.

          Following   our   decision,    Arnold   filed   a   statement

concerning jurisdiction in the district court claiming that in

addition to his prison term, the state court imposed a consecutive

five-year term of supervision that was still undischarged, and he

was therefore “in custody” when he filed his petition.         He also

requested the state be ordered to produce the record of conviction

and transcripts of sentencing.    Noting our determination that the

record was unclear whether Arnold was on parole or probation at the

time of filing, the district court ordered the state “to answer the

incarceration status of the defendant.”     The state responded that

Arnold was convicted of one count of computer fraud and sentenced

to two years in state prison; he was discharged by expiration of

the sentence in 1999; and according to criminal records available




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to the state division of corrections, he was “not presently on

probation or parole for any offense committed in West Virginia.”

           Based    on   the   state’s   response,         the   district   court

dismissed the petition, and Arnold moved for reconsideration.                   He

claimed that transcripts from his state sentencing hearing or a

certificate from the state judge would show that a consecutive

five-year term of probation had been imposed, and the state had

misrepresented his custody status.           The district court denied the

motion.    Subsequently, Arnold moved for relief under Rule 60(b).

He reminded the court of our remand for factual findings, noted he

was convicted of two different counts, and provided transcript

excerpts from his sentencing hearing in which the state judge

discussed a sentence of two years on count two, and a consecutive

suspended sentence of five years on count three, for which he would

be placed on probation.        He again requested relief based upon the

state’s alleged misrepresentation of his custody status.                 Without

requesting a response from the state, the district court denied the

motion “[b]ecause the evidence presented [was] not sufficient to

prove [Arnold] was serving a probation term.”

           After    granting     a   certificate      of    appealability,      we

directed   the     Appellees    (hereafter,     the    “state”)     to   file    a

responsive brief pursuant to 4th Cir. R. 22(a)(1)(B) addressing,

inter alia, whether the district court erred in its procedural

ruling dismissing Arnold’s Rule 60(b) motion.                Subsequent to our


                                     - 4 -
order, the state obtained a copy of the transcript of Arnold’s plea

and sentencing hearing from the court reporter and determined

Arnold had accurately described that he was in fact convicted of

two counts and sentenced by the state judge to “a two-year term in

the penitentiary on Count II, followed by a suspended sentence and

five years of supervised probation on Count III.”2                    However, the

state    represents         that   due   to   “inadvertence      or   neglect,”   no

conviction or sentencing order reflecting the five-year term was

ever entered in state court.3             Therefore, the state contends that

it “simply advised the district court of the facts as shown by the

record,” and “[b]ased on the record before the district court, the

court    did    not       have   jurisdiction    to   consider   Arnold’s   §   2254

petition, nor grounds to grant his motion for reconsideration under

Rule 60(b).”

               In light of our prior mandate that the district court

determine whether Arnold was “in custody” within the meaning of the

statute when he filed his petition, Arnold’s persistent claims that

he   received         a    consecutive    five-year     suspended     probationary

sentence, his submission of portions of the transcript, which



     2
      Although the state has offered to provide the court a copy of
the transcript, it is not currently part of the record.        Upon
remand, we direct the district court to obtain this and other state
documents relevant to its review.
     3
      We note that subsequent to the state’s filing of its brief,
the state court evidently entered a “Conviction and Sentencing
Order and Order of Probation (Entered nunc pro tunc).”

                                         - 5 -
evidently was the only available evidence of his sentence, the

district court’s failure to obtain a response or complete record

from the state, and the “exceptional circumstances” of this case,

see Compton v. Alton S.S. Co., Inc., 608 F.2d 96, 102 (4th Cir.

1979), we find the district court abused its discretion by denying

Arnold’s Rule 60(b) motion based on his failure to sufficiently

prove his probationary term.

           We   therefore     remand     to   the   district      court    for

reconsideration of Arnold’s motion in light of all the evidence.

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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