UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-6201

CREADELL HUBBARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-88-40-BO, CA-97-320-5-BO)

Submitted: June 23, 1998

Decided: August 28, 1998

Before WIDENER and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Creadell Hubbard, Appellant Pro Se. Robert Daniel Boyce, Raleigh,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________
OPINION

PER CURIAM:

Creadell Hubbard, a federal prisoner, filed a 28 U.S.C.A. § 2255
(West 1994 & Supp. 1998) motion on April 24, 1997. The Govern-
ment filed a motion to dismiss the motion under Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction. The Government
argued that Hubbard's motion was untimely because it was filed one
day after the one year grace period ended under the Antiterrorism and
Effective Death Penalty Act (AEDPA). The district court decided that
Hubbard's motion was timely under the AEDPA, but that because it
was filed six years after final judgment, the motion was filed after an
unreasonable delay.

The district court stated that Hubbard's motion was not filed within
a reasonable time for the commencement of an existing cause of
action. The court relied upon Texaco, Inc. v. Short, 454 U.S. 516,
526-29 (1982). That case upheld the extinguishment of a property
interest in accordance with a state statute stating the length of time
before lapse and reversion occurs. See Texaco , 454 U.S. at 540.
Before the enactment of the AEDPA, the filing of a§ 2255 motion
did not have a statutory filing deadline.

Rule 9(a) of the Rules Governing § 2255 Proceedings addresses
delayed motions. Rule 9(a) states that a § 2255 motion may be dis-
missed if the government "has been prejudiced in its ability to
respond to the motion by delay in its filing unless the movant shows
that it is based on grounds of which he could not have had knowledge
by the exercise of reasonable diligence before the circumstances prej-
udicial to the government occurred." Thus, unreasonable delay is a
valid basis to dismiss a § 2255 motion.

However, when dismissing under Rule 9(a), the government must
make a particularized showing of prejudice. See Alexander v.
Maryland, 719 F.2d 1241, 1246 (4th Cir. 1983) (holding, when eight
years of twenty-year delay in filing habeas petition was attributable
to petitioner, district court correctly declined to dismiss under Rule
9(a) because "mere passage of time is . . . not sufficient . . . the state
must make a particularized showing of prejudice"). Campas v.

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Zimmerman, 876 F.2d 318, 325 (3d Cir. 1989); Lawrence v. Jones,
837 F.2d 1572, 1575 (5th Cir. 1988); Bowen v. Murphy, 698 F.2d
381, 383 (10th Cir. 1983). After such an affirmative showing has been
made, the court must offer the movant an opportunity to rebut the
showing of prejudice or show that the prejudice was unavoidable. See
Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir. 1985); Bowen, 698
F.2d at 383; Davis v. Adult Parole Auth., 610 F.2d 410, 414 (6th Cir.
1979).

The question of prejudice was not addressed by the parties.
Because the Government must make a particularized showing of prej-
udice to warrant dismissal of the motion on the basis of unreasonable
delay, we grant a certificate of appealability, vacate the district court
order, and remand the case 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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