UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN PATRICK MCSHEFFREY,
Petitioner-Appellant,

v.

RONALD J. ANGELONE, Director of
the Virginia Department of
                                                                      No. 98-6519
Corrections,
Respondent-Appellee,

and

COMMONWEALTH OF VIRGINIA,
Respondent.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
David G. Lowe, Magistrate Judge.
(CA-97-466)

Submitted: February 2, 1999

Decided: February 23, 1999

Before ERVIN and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

John Patrick McSheffrey, Appellant Pro Se. Thomas Drummond Bag-
well, Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John Patrick McSheffrey appeals the dismissal of his 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 1998) petition as untimely. This appeal
presents the question of whether a second or subsequent petition for
state postconviction relief, filed according to the procedural rules of
the state, constitutes a "properly filed application" for the purpose of
tolling the statute of limitations, regardless of the underlying merits
of the state petition. Because we conclude that it does, we grant a cer-
tificate of appealability, vacate the order of the district court, and
remand this matter for further consideration.

In 1990, McSheffrey was sentenced in the Norfolk Circuit Court in
Virginia, after pleading guilty to possession with intent to distribute
cocaine. McSheffrey did not appeal. Instead, he filed a petition for a
state writ of habeas corpus. After relief was denied, McSheffrey filed
another habeas petition in January 1996, which was dismissed on
appeal on December 5 as procedurally defaulted. 1

McSheffrey then submitted a federal habeas petition dated May 5
and filed June 18, 1997. The district court found that the pendency of
McSheffrey's successive state petition did not toll the federal habeas
_________________________________________________________________
1 The district court stated that McSheffrey filed three petitions for a
state writ of habeas corpus. McSheffrey contends that the petition
deemed by the district court to be his "first" petition actually addressed
a different conviction, and thus, he has only filed two state petitions
regarding the instant conviction. Although the "first" petition is not
included in the case file, McSheffrey's allegations appear to be supported
by the record. (See R. Vol. 3 at 26 (Norfolk Circuit Court decision of
April 5, 1996, listing only one previous petition)). Nonetheless, even a
second petition would be barred as successive under Virginia state rules,
see Va. Code Ann. § 8.01-654(B)(2) (Michie Supp. 1998), so any error
on this issue is irrelevant.

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one-year statute of limitations, which was enacted in the Antiterror-
ism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.
104-132, 110 Stat. 1214 (effective Apr. 24, 1996). Accordingly, the
district court found that McSheffrey's federal petition was untimely
filed outside the applicable grace period, which expired on April 23,
1997.2 See Brown v. Angelone , 150 F.3d 370, 375-76 (4th Cir. 1998)
(holding that prisoners whose convictions became final before the
AEDPA had one year from the effective date of the AEDPA to file
a timely petition). McSheffrey appeals.

The AEDPA amended 28 U.S.C. § 2244 (1994) to require that
§ 2254 petitions be filed no later than one year after the completion
of state court direct review or the expiration of time to seek such
review. See 28 U.S.C.A. § 2244(d)(1)(A) (West Supp. 1998). The
time during which a "properly filed application for State post-
conviction or other collateral review" is pending does not count
toward the period of limitation. 28 U.S.C.A. § 2244(d)(2) (West
Supp. 1998).

McSheffrey's conviction became final in 1990, when his time for
filing an appeal expired. Where a habeas corpus petition is filed by
a petitioner whose conviction became final before the AEDPA's
enactment, the petition is considered timely when it is filed on or
before April 23, 1997, that is, within one year after the AEDPA was
enacted. See Brown, 150 F.3d at 375-76. McSheffrey filed his petition
nearly two months after this deadline, and therefore, it was properly
dismissed unless the filing of his successive state habeas petition--
filed on January 22, 1996, and finally denied on December 5, 1996--
tolled the filing requirement. The district court found that, because
McSheffrey's successive petition was dismissed as procedurally
barred by the state court, the petition was not"properly filed" within
the meaning of the AEDPA. We disagree.

A state application is properly filed if it complies with the state
procedural requirements for successive collateral attacks on a convic-
tion, such as timeliness and proper place of filing. It is unnecessary
for a federal court to examine the merits of the state application or to
_________________________________________________________________
2 The case was decided by a magistrate judge pursuant to the parties'
consent. See 28 U.S.C. § 636(c)(1) (1994).

                    3
determine whether a procedural bar is applicable. See Lovasz v.
Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998). Thus, because Appel-
lees do not contend that McSheffrey failed to comply with any of the
procedural requirements for filing a collateral attack in Virginia state
court, we find that his January 1996 petition was"properly filed."

McSheffrey's one-year grace period was, therefore, tolled until
December 5, 1996, and he had until December 4, 1997, to file his fed-
eral habeas petition. His § 2254 petition was filed on June 18, 1997,
well within the period allowed by the AEDPA.

Because we find that McSheffrey's habeas petition was timely
filed, we grant a certificate of appealability, vacate the order of the
district court, and remand for further consideration. We deny McShef-
frey's motion to order Appellees to file an informal brief. 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.

VACATED AND REMANDED

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