UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 00-6170

JIMMIE ALLEN KEARNEY, JR.,
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-96-141-BO, CA-99-688-BO)

Submitted: May 31, 2000

Decided: July 18, 2000

Before WILKINS and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Jimmie Allen Kearney, Jr., Appellant Pro Se. Robert Edward Skiver,
Assistant United States Attorney, Cynthia Elaine Tompkins, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jimmie Allen Kearney, Jr., seeks to appeal the district court's
orders dismissing his motion filed under 28 U.S.C.A.§ 2255 (West
Supp. 2000) and denying his motion to rescind that order. We have
reviewed the record and the district court's orders and conclude Kear-
ney's § 2255 motion was filed within one year of his conviction
becoming final. See 28 U.S.C.A. § 2255 (West Supp. 2000). The
waiver of appellate rights contained in Kearney's plea agreement was
not an absolute bar to direct appeal. See United States v. Wiggins, 905
F.2d 51, 52-53 (4th Cir. 1990). Therefore, we find Kearney's judg-
ment of conviction became final when the United States Supreme
Court denied his petition for a writ of certiorari. See United States v.
Torres, No. 98-7657, 2000 WL 546352, at *2 (4th Cir. May 3, 2000).
Accordingly, we grant a certificate of appealability on the issue of
whether Kearney's § 2255 motion was timely filed, vacate the district
court's order, and remand for further consideration.* We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

VACATED AND REMANDED
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*By this disposition, we indicate no view on the merits of Kearney's
motion.

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