UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-6847

JAMES AARON WALKER, 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-96-199-BO, CR-97-62-BO, CA-99-96-5-BO)

Submitted: August 31, 1999

Decided: September 17, 1999

Before LUTTIG and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

James Aaron Walker, Jr., Appellant Pro Se. Fenita Morris Shepard, 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_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

James Aaron Walker, Jr., seeks to appeal the district court's order denying his motion filed under

(West Supp. 1999). We have reviewed the record and the district court's opinion and find no reversible error. We therefore dismiss the appeal, although we rely on different reasoning than the district court. See Skipper v. French,

(4th Cir. 1997) (finding that appellate court may affirm judgment on alternative ground where alternative ground was advanced in lower court, whether or not con- sidered).

Section 2255 provides that a movant has one year from "the date on which the judgment of conviction becomes final" to file a motion under that statute. See

. Where, as here, a defen- dant does not pursue a direct appeal, the conviction becomes final when the time expires for filing a direct appeal. See Adams v. United States,

, 1342 n.2 (11th Cir. 1999) (citing Kapral v. United States,

(3d Cir. 1999)).

Here, Walker did not file a direct appeal from the criminal judg- ment entered on October 21, 1997.1 Giving Walker the benefit of the ten-day appeal period and thirty-day excusable neglect period in Fed. R. App. P. 4(b), his conviction became final no later than December 1, 1997.2 Therefore, the one-year limitations period expired on _________________________________________________________________ 1 Although Walker was sentenced and the criminal judgment was filed on September 25, 1997, the district court's records show the judgment was entered on the docket sheet on October 21, 1997. Pursuant to Fed. R. Civ. P. 58 and 79(a), we consider the date the judgment was entered as the effective date of the district court's decision. See Wilson v. Murray,

(4th Cir. 1986). 2 The 40th day fell on Sunday, November 30, 1997. See Fed. R. App. P. 6.

2 November 30, 1998, rendering untimely Walker's § 2255 motion filed on February 9, 1999. We therefore deny a certificate of appeala- bility and dismiss the appeal on that basis. We dispense with oral argument because the facts and legal contentions are adequately pre- sented in the materials before the court and argument would not aid the decisional process.

DISMISSED

3