                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


BOBBY HARVEY,                           
                 Plaintiff-Appellant,
                 v.                                No. 03-7031
UNITED STATES OF AMERICA,
               Defendant-Appellee.
                                        
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 James R. Spencer, District Judge.
                    (CR-01-160-4, CA-03-300)

                      Submitted: October 27, 2003

                      Decided: November 19, 2003

   Before NIEMEYER, MICHAEL, and KING, Circuit Judges.



Remanded by unpublished per curiam opinion.


                              COUNSEL

Bobby Harvey, Appellant Pro Se. Brian Ronald Hood, Assistant
United States Attorney, Richmond, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

   Bobby Harvey appeals the district court’s order denying relief on
his 28 U.S.C. § 2255 (2000) motion. An appeal may not be taken
from the final order in a § 2255 proceeding unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). A certificate of appealability will not issue absent "a substan-
tial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrat-
ing that reasonable jurists would find that his constitutional claims are
debatable and that any dispositive procedural rulings by the district
court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S.
322 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001).

   We conclude that we cannot determine on the present record
whether Harvey filed his § 2255 motion within one year of the date
on which the facts underlying his § 2255 motion could have been dis-
covered through the exercise of due diligence. Accordingly, we
remand to the district court for further factual findings to determine
if Harvey instructed his counsel to file a notice of appeal and, if so,
when he could have discovered counsel’s failure to follow such
instructions through the exercise of due diligence. 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.

                                                           REMANDED
