UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-7360 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL S. MCCRAE, Defendant -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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). - 2 - and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED - 3 -