UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-7076 JAMES A. BUTLER, a/k/a Willie James Butler, a/k/a John Thomas, a/k/a Grady, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-7235 JAMES A. BUTLER, a/k/a Willie James Butler, a/k/a John Thomas, a/k/a Grady, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-7236 JAMES A. BUTLER, a/k/a Willie James Butler, a/k/a John Thomas, a/k/a Grady, Defendant-Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge. (CR-91-44) Submitted: October 29, 1999 Decided: November 15, 1999 Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL James A. Butler, Appellant Pro Se. Howard Crawford Vick, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Vir- ginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: James A. Butler appeals the district court's order denying his request for an extension of time in which to file his 28 U.S.C.A.

§ 2255 (West Supp. 1999), motion and ordering the district court clerk not to file the 28 U.S.C.A. § 2255 motion. Butler's motion for post-conviction relief was received in the district court on April 29, 1997. The district court ordered the district court clerk not to file the motion because it concluded that Butler had one year from July 1993, when his conviction became final, in which to file under the newly amended 28 U.S.C.A. § 2255. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. Butler timely appealed the order.

While the case was pending on appeal, this court decided Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998). Under Brown, Butler had until April 23, 1997, to file his federal habeas motion. See id. at 375- 76. We remanded the case to the district court for the limited purpose of determining the date on which Butler delivered the motion to prison officials for forwarding to the court and was therefore consid- ered filed under Houston v. Lack, 487 U.S. 266, 276 (1988). See United States v. Butler, No. 97-7076(L), slip op. at 3 (4th Cir. Oct.

19, 1998) (per curiam). On remand, the district court found that Butler delivered the motion to prison officials prior to April 23, 1997.

Accordingly, Butler's motion was timely filed. See Brown, 150 F.3d at 376.

The district court did not consider the merits of Butler's § 2255 motion when it denied the motion for an extension of time in which to file and ordered the district court clerk not to file the motion as time-barred. On remand, the court had jurisdiction only to determine the date on which Butler filed the motion. Accordingly, we grant a certificate of appealability. The court's order directing the clerk not to file the motion is vacated and remanded with instructions to review the merits of the timely petition.

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