United States v. Walker ( 1999 )

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.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 28 U.S.C.A. § 2255 (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, 130 F.3d 603, 610 (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 28 U.S.C.A. § 2255. 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, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999) (citing Kapral v.
United States, 166 F.3d 565, 575 (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
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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, 806 F.2d 1232, 1234-35 (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