UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WILLIAM HARRISON,                     
              Petitioner-Appellant,
                 v.                             No. 01-7912
RONALD JONES, Superintendent,
              Respondent-Appellee.
                                      
           Appeal from the United States District Court
     for the Western District of North Carolina, at Statesville.
             Graham C. Mullen, Chief District Judge.
                      (CA-99-109-5-2-MU)

                   Submitted: February 26, 2002

                      Decided: March 19, 2002

          Before MOTZ and KING, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

William Harrison, Appellant Pro Se. Diane Appleton Reeves,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                           HARRISON v. JONES
                                OPINION

PER CURIAM:

   William Harrison, a North Carolina prisoner, filed this 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2001) petition challenging his 1994 con-
victions for kidnaping and rape. The defendant answered and filed a
motion for summary judgment, arguing that most of Harrison’s claims
were procedurally barred and that none of them had merit. The district
court dismissed the petition because it was not filed within the one-
year limitations period of 28 U.S.C.A. § 2244(d)(1) (West 1994 &
Supp. 2001). Harrison appeals. We vacate and remand.

    In Hill v. Braxton, 

(4th Cir. 2002), we recently held:

      that when a federal habeas court, prior to trial, perceives a
      pro se § 2254 petition to be untimely and the state has not
      filed a motion to dismiss based on the one-year limitations
      period, the court must warn the prisoner that the case is sub-
      ject to dismissal pursuant to § 2244(d) absent a sufficient
      explanation, unless it is indisputably clear from the materi-
      als presented to the district court that the petition is untimely
      and cannot be salvaged by equitable tolling principles or any
      of the circumstances enumerated in § 2244(d)(1).

Here, Hill is fully applicable. The defendant’s answer and
motion for summary judgment were not based on expiration of the
limitations period. Hill takes issue with the court’s conclusion that the
habeas petition was untimely. And it is not "indisputably clear" from
the materials in the record that the petition is untimely and unsalvage-
able.

  We therefore grant the motion for certificate of appealability,
vacate the decision of the district court, and remand for proceedings
consistent with our holding in Hill. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before us and argument would not aid the decisional pro-
cess. The motion for appointment of counsel is denied.

                                          VACATED AND REMANDED