United States v. Bailey

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-6447 JERRY ALLEN BAILEY, Defendant-Appellant.  Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-94-111, CA-99-495-3-MU) Submitted: September 29, 2000 Decided: October 18, 2000 Before WIDENER, MOTZ, and TRAXLER, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. COUNSEL Jerry Allen Bailey, Appellant Pro Se. Brian Lee Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. BAILEY OPINION PER CURIAM: Jerry Allen Bailey seeks to appeal the district court’s order dismiss- ing without prejudice his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2000). We note that Bailey’s prior § 2255 motion, filed before he was sentenced, does not trigger the requirement of authori- zation from this court to file a second or successive 28 U.S.C. § 2255 motion. See id.; See O’Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998). Accordingly, we grant a certificate of appealability and vacate the district court’s order requiring authorization from this court for Bailey’s instant § 2255 motion. The case is remanded for further proceedings not inconsistent with this opinion. We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-6447 JERRY ALLEN BAILEY, Defendant-Appellant.  Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-94-111, CA-99-495-3-MU) Submitted: September 29, 2000 Decided: October 18, 2000 Before WIDENER, MOTZ, and TRAXLER, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. COUNSEL Jerry Allen Bailey, Appellant Pro Se. Brian Lee Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. BAILEY OPINION PER CURIAM: Jerry Allen Bailey seeks to appeal the district court’s order dismiss- ing without prejudice his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2000). We note that Bailey’s prior § 2255 motion, filed before he was sentenced, does not trigger the requirement of authori- zation from this court to file a second or successive 28 U.S.C. § 2255 motion. See id.; See O’Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998). Accordingly, we grant a certificate of appealability and vacate the district court’s order requiring authorization from this court for Bailey’s instant § 2255 motion. The case is remanded for further proceedings not inconsistent with this opinion. We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED