United States v. Smith

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 97-7055

KEMBA NIAMBI SMITH, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CR-93-162, CA-97-411-2)

Submitted: August 27, 1998

Decided: September 15, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

George Kendall, Leah Song Richardson, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, New York, New York; Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSOCIATES, Richmond, Vir- ginia, for Appellant. Fernando Groene, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Kemba Niambi Smith appeals from a district court order that con- cluded her motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) was barred by the one-year limitations period of 28 U.S.C.A. § 2255 (West Supp. 1998). Smith's conviction became final in 1995, and she filed her habeas motion on April 23, 1997. Because Smith had until April 23, 1997 to file her § 2255 motion, see Brown v. Angelone, ___ F.3d ___, 1998 WL 389030 (4th Cir. July 14, 1998) (Nos. 96-7173, 96-7208), her motion was not time barred. For these reasons, we grant a certificate of appealability on this issue, vacate the district court's order, and remand for further proceedings. We dis- pense 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