UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6452
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD FELTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:93-cr-00123-F; 5:08-cv-00050-F)
Submitted: March 27, 2009 Decided: April 14, 2009
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Gerald Felton, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Felton seeks to appeal the district court’s
order denying as successive his motion under 28 U.S.C.A. § 2255
(West Supp. 2008). We previously granted a certificate of
appealability on the issue of whether the § 2255 motion was
properly dismissed as successive. The government concedes that
Felton was not provided notice that his prior filing was
construed as a § 2255 motion, and further notes that Felton was
not informed that his current motion was considered to be
successive. See United States v. Blackstock, 513 F.3d 128, 133
(4th Cir. 2008). As such, the government acknowledges, the
instant motion under § 2255 should be considered Felton’s first
such motion.
We have carefully reviewed the record and agree with
the government’s position. We therefore vacate the district
court’s order denying the § 2255 motion as successive, and
remand for consideration of the motion as Felton’s first § 2255
motion. We deny Felton’s motion for appointment of counsel and
dispense 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
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