UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 97-7075

ALAN SMITH, a/k/a "Smitty," Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CR-94-54-2, CA-97-405-2)

Submitted: September 10, 1998

Decided: September 28, 1998

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Alan Smith, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________ OPINION

PER CURIAM:

Alan Smith appeals from the district court's order denying his motion filed under

(West 1994 & Supp. 1998), as barred by the statute's one-year limitations period. Smith's convic- tion became final in 1994, and he filed his motion on April 17, 1997. Because Smith had until April 23, 1997 to file his§ 2255 motion, we conclude that it was not time-barred. See Brown v. Angelone, ___ F.3d ___,

(4th Cir. July 14, 1998) (Nos. 96-7173, 96-7208). Accordingly, we grant a certificate of appealability on this issue, vacate the district court's order, and remand for further pro- ceedings. 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

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