UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7360
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EMMANUEL S. MCCRAE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-01-106-BO; CA-03-420-5-BO)
Submitted: July 2, 2004 Decided: July 22, 2004
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Emmanuel S. McCrae, Appellant Pro Se. Felice McConnell Corpening,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Emmanuel S. McCrae appeals from the district court’s
order denying as untimely his motion filed pursuant to 28 U.S.C.
§ 2255 (2000). We previously granted a certificate of
appealability on the issue of whether remand is appropriate to
determine when a duly diligent person would have discovered that
counsel failed to file a notice of appeal after being asked to do
so.* See 28 U.S.C. § 2255 ¶ 6(4) (“A 1-year period of limitation
shall . . . run from the latest of . . . the date on which the
facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.”). The
Government has responded, and McCrae has replied. See 4th Cir. R.
22(a)(1)(B).
Because the district court did not consider the
timeliness of McCrae’s § 2255 motion pursuant to § 2255 ¶ 6(4) and
because the record does not disclose when McCrae could have
discovered with due diligence that counsel failed to file a notice
of appeal, we vacate the district court’s order and remand for the
court to determine whether the § 2255 motion is timely under § 2255
¶ 6(4). We express no opinion on the outcome of this
determination. We dispense with oral argument because the facts
*
We deny a certificate of appealability and dismiss the portion
of the appeal in which McCrae challenged the district court’s
finding that his § 2255 motion was untimely under § 2255 ¶ 6(1).
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
VACATED AND REMANDED
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