UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DAMON LOUIS WHEELOUS, Petitioner-Appellant, v. No. 97-6859 DAVID GARRAGHTY, Warden; ATTORNEY GENERAL OF THE STATE OF VIRGINIA, Respondents-Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge. (CA-97-444-2) Submitted: August 11, 1998 Decided: September 2, 1998 Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Damon Louis Wheelous, Appellant Pro Se. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

OPINION PER CURIAM: Damon Louis Wheelous appeals from the district court's order dis- missing his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998) as untimely filed. We vacate and remand the district court's decision. The record does not reveal when Appellant delivered his petition to the prison authorities for mailing to the court. Accord- ingly, we grant a certificate of appealability and remand the case for the district court to determine whether Wheelous' petition was deliv- ered to prison authorities on or before April 23, 1997, under Houston v. Lack, 487 U.S. 266 (1988). See Brown v. Angelone, ___ F.3d ___, 1998 WL 389030, at *6 (4th Cir. July 14, 1998).

We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED