                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 13-7855


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

RALPH EDWARD SMITH,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:10-cr-00414-BO-1; 5:13-cv-00457-BO)


Submitted:   April 24, 2014                      Decided:    May 2, 2014


Before GREGORY    and   DIAZ,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Ralph Edward Smith, Appellant Pro Se.  Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ralph Edward Smith appeals the district court’s order

dismissing his 28 U.S.C. § 2255 (2012) motion.                         We granted a

certificate    of     appealability        on    the    issue     of    whether    the

district court erred in sua sponte dismissing Smith’s § 2255

motion as untimely filed.                The Government has responded, and

this appeal is ripe for disposition.                   We vacate and remand for

further proceedings.

            The district court, acting sua sponte, determined from

the face of Smith’s motion that his claims were barred by the

one-year limitations period set forth in 28 U.S.C. § 2244(d)

(2012), and dismissed the action without giving Smith notice or

an opportunity to respond. 1              Pursuant to Hill v. Braxton, 277

F.3d 701 (4th Cir. 2002), the district court is required to

provide such notice and opportunity to respond “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     Smith

cannot   salvage    his      motion,     and    the   Government       concedes    that

     1
       We note that the Government did not move to dismiss
Smith’s § 2255 motion on timeliness grounds but rather based on
the waiver in Smith’s plea agreement.



                                           2
remand is appropriate, we vacate the district court’s order and

remand to the district court to provide Smith with the notice

and opportunity to respond to which he is entitled pursuant to

Hill. 2    We grant Smith’s motion to proceed in forma pauperis on

appeal.     We dispense with oral argument because the facts and

legal     contentions    are   adequately   presented     in   the   materials

before    this   court   and   argument   would   not   aid    the   decisional

process.

                                                        VACATED AND REMANDED




      2
        We, of course, express no opinion as to the timeliness or
merits of Smith’s claims.




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