U.S. v. McGinley

Full title: UNITED STATES of America, Petitioner-Appellant, v. Jonathan Michael…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 19, 2001

8 F. App'x 706 (9th Cir. 2001)

Opinion

8 Fed.Appx. 706 (9th Cir. 2001) UNITED STATES of America, Petitioner-Appellant, v. Jonathan Michael MCGINLEY, Respondent-Appellee. No. 00-35677. D.C. Nos. CV-98-6349-MRH, CR-91-60012-MRH. United States Court of Appeals, Ninth Circuit. April 19, 2001

Submitted April 9, 2001. ¹

1 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding.

Before CANBY, KOZINSKI, and RYMER, Circuit Judges.

MEMORANDUM ²

2 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Jonathan Michael McGinley appeals the district court's order denying his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The district court denied the motion on the ground that it was not filed within the one-year limitation period specified in § 2255. The district court issued a certificate of appealability as to claims of sentencing error and an unconstitutional statute.

The government now concedes that the § 2255 motion was timely filed within a year after the Supreme Court denied certiorari and recommends remand to the district court for hearing on the merits.

The district court's order denying the motion is therefore VACATED and the case is REMANDED for further proceedings.