Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.george Allen Porter, Petitioner-appellant, v. Edward W. Murray, Director, Virginia Department Ofcorrections, Respondent-appellee, 67 F.3d 296 (4th Cir. 1995)
Annotate this CaseAppeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-94-433-AM)
George Allen Porter, Appellant Pro Se. Mary Elizabeth Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
E.D. Va.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.
OPINION
PER CURIAM:
George A. Porter appeals from a district court order granting summary judgment in favor of Respondent on his 28 U.S.C. § 2254 (1988) petition. We affirm in part, vacate in part, and remand.
Respondent filed his third motion for summary judgment on September 6, 1994, and gave notice of the motion. Under district court local rule and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and as the notice informed Porter, he had fifteen days to file a response and supporting evidence. The State concedes that Porter's response and evidence--a sworn statement contradicting the State's assertion that Porter was given adequate process at this disciplinary hearing--should have been considered by the district court, even though they were not received in the district court until September 23. The district court granted summary judgment on September 22 and did not act further in the case after receiving Porter's response.
Given the State's concession, we conclude that the district court should reconsider the state's summary judgment motion in light of Porter's response. We thus grant Porter a certificate of probable cause to appeal, vacate the district court's order only as to his claim concerning his disciplinary hearing, and remand for reconsideration of the respondent's motion for summary judgment insofar as it concerns that claim. We affirm the district court's order in all other respects. We dispense 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.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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