Dale Hendrickson, Petitioner-appellant, v. Bureau of Prisons, Ray Holt, Warden, Respondents-appellees, 218 F.3d 197 (2d Cir. 2000)

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U.S. Court of Appeals for the Second Circuit - 218 F.3d 197 (2d Cir. 2000) June 29, 2000

Present: Hon. Amalya L. Kearse, Hon. Robert D. Sack, Circuit Judges. Hon. David N. Hurd, District Judge.

PER CURIAM:


Appellant has filed, pro se, a motion for a certificate of appealability in order to appeal the order of the district court (1) dismissing as untimely his motion pursuant to 28 U.S.C. 2255 to vacate his judgment of conviction, and (2) denying his motion for recusal of the district judge. Upon due consideration, it is ORDERED that the motion be and it hereby is granted, in part, for the following limited purpose. So much of the district court's order as denied petitioner's motion to set aside the judgment of conviction is vacated, and the matter is remanded for the court to inform petitioner that his motion is to be construed as a motion pursuant to 2255, and to give petitioner an opportunity to show why that motion is not barred by time limits imposed by the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996), see 28 U.S.C. 2244(d) (Supp. III 1997); Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), cert. granted, 120 S. Ct. 1669, 146 L. Ed. 2d 479, 68 U.S.L.W. 3654 (U.S. 2000).

In all other respects, the motion for a certificate of appealability is denied.