UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 98-6104
FRANKLIN DELINOR WAYMAN, a/k/a
Franklin Delano Wayman,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-96-43, CA-97-816-5)

Submitted: May 29, 1998

Decided: June 24, 1998

Before MURNAGHAN, ERVIN, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Franklin Delinor Wayman, Appellant Pro Se. Michael Lee Keller,
Michael O. Callaghan, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Franklin Delinor Wayman seeks to appeal the district court's order
denying as untimely his motion filed under 28 U.S.C.A. § 2255 (West
1994 & Supp. 1998). We have reviewed the record and the district
court's opinion accepting the recommendation of the magistrate judge
and find that Wayman's motion was timely filed. See Fed. R. App.
P. 4(b); 28 U.S.C.A. § 2244(d)(1)(A) (stating that a judgment
becomes final at the conclusion of direct review or the expiration of
the time for seeking such review). We find that Wayman's motion
was filed on the 365th day after the judgment became final.* Accord-
ingly, we vacate the judgment of the district court and remand for
consideration of the merits of Wayman's motion. We defer ruling on
Wayman's request for a certificate of appealability pending the dis-
trict court's consideration of the merits on remand. 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.

VACATED AND REMANDED
_________________________________________________________________
*Wayman's conviction was entered on the docket on August 6, 1996.
The last day to file an appeal was August 16, 1996. See Fed. R. App. P.
4(b). One year beyond that date, August 16, 1997, fell on a Saturday.
Thus, Wayman had until Monday, August 18, 1997, to file his § 2255
motion. See Fed. R. Civ. P. 6(a). His motion was filed that day.

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