United States v. Calloway

ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-6211

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWARD CALLOWAY, a/k/a Stink,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CR-92-113)

Submitted: September 20, 2004 Decided: June 17, 2005

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

Affirmed by unpublished per curiam opinion.

Edward Calloway, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Calloway filed on April 22, 1996, a § 2255 motion seeking

relief from his criminal conviction in case no. 2:92cr113. This

motion was denied by the district court April 3, 1997, and was

affirmed by this court March 19, 1998.

The present § 2255 motion was filed September 3, 2002, again

seeking relief from the same criminal conviction and was denied by

the district court on October 31, 2002, as successive, Calloway not

having received previous authority from this court to file the

same.

A Rule 59(e) motion to alter or amend the district court’s

order of October 31, 2002, was denied by the district court on

January 16, 2003, because the § 2255 petition was successive.

On appeal from the decision of the district court of October

31, 2002, we considered the Rule 59(e) motion to have been untimely

and thus the appeal was not considered on its merits, rather on

another ground.

Upon a petition for rehearing we have determined that our

decision was erroneous in denying the Rule 59(e) motion as

untimely. So we consider the petition for rehearing on its merits

and reconsider the merits of the decision of the district court.

This § 2255 petition was filed in this case September 3, 2002,

in case no. 2:92cr113. The petition stated on its face that it was

a petition under 28 U.S.C. § 2255, thus there was no
misconstruction or labeling issues under United States v. Emmanuel,

288 F.3d 644 (4th Cir. 2002).

The § 2255 motion was correctly denied by the district court

as successive: “As Calloway’s first habeas petition was decided on

the merits, his second petition qualifies as a ‘second or

subsequent’ petition, despite his claims to the contrary.” See

United States v. Edward Calloway, No. 2:92cr113 (E.D. Va. Jan. 16,

2003) (order denying motion to alter or amend judgment).

The district court even advised Calloway that he must receive

an authorization from this court, giving our mailing address,

before the district court might consider the § 2255 motion for

relief on its merits.

We affirm the judgment of the district court for the reasons

stated in its opinion.

Calloway must get leave of this court before he may proceed

under § 2255. See 28 U.S.C. §§ 2244, 2255.

AFFIRMED