                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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