UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7657
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEZMEND RASHAWN DOWEARY, a/k/a Hit,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:04-cr-00016-RAJ-1; 2:07-cv-00280-RAJ)
Submitted: August 27, 2009 Decided: September 4, 2009
Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Dezmend Rashawn Doweary, Appellant Pro Se. Darryl James
Mitchell, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dezmend Rashawn Doweary appeals the district court’s
order dismissing as untimely his motion under 28 U.S.C.A. § 2255
(West Supp. 2009). Having previously granted a certificate of
appealability, see 28 U.S.C. § 2253(c) (2006), we now conclude
that the district court erred in dismissing the motion.
The district court entered its judgment of conviction
on November 29, 2004, and Doweary timely appealed. We dismissed
the appeal on March 30, 2006. Doweary did not petition for a
writ of certiorari in the Supreme Court. Thus, his conviction
became final ninety days later on June 28, 2006, see Clay v.
United States, 537 U.S. 522, 527 (2003), and he had until June
28, 2007, to file his § 2255 motion. Doweary’s § 2255 motion
was dated June 13, 2007, and received by the district court on
June 21, 2007. The district court ruled that Doweary’s
conviction became final on November 29, 2004, and his § 2255
motion was time-barred. On appeal, Doweary contends the
district court erred in ruling his motion was time-barred. In
its responsive brief, the Government concedes that Doweary’s
§ 2255 motion was timely filed, and the district court’s order
should be reversed.
Accordingly, we vacate the district court’s order
dismissing Doweary’s § 2255 motion as untimely, and we remand
the case for reconsideration of the motion. We dispense with
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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.
VACATED AND REMANDED
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