UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6516
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOUGLAS THOMAS PERSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-cr-00170-BO-1; 5:10-cv-00076-BO)
Submitted: January 31, 2011 Decided: June 29, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Douglas Thomas Person, Appellant Pro Se. Steve R. Matheny,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Thomas Person was convicted of possession with
intent to distribute five grams or more of cocaine base and
possession of a firearm during and in relation to a drug
trafficking crime. He was sentenced to 262 months’
imprisonment. He filed a 28 U.S.C.A. § 2255 (West Supp. 2010)
motion, arguing, inter alia, that counsel failed to file a
direct appeal as he requested. See United States v. Peak, 992
F.2d 39, 42 (4th Cir. 1993). The district court ultimately
granted the motion for the limited purpose of allowing Person to
file an appeal, vacated the criminal judgment, and entered a new
judgment. The district court, however, denied relief on
Person’s remaining claims. We affirmed Person’s sentence on
direct appeal. United States v. Person, 299 F. App’x 283 (4th
Cir. 2008) (No. 07-4944). Person filed a second § 2255 motion,
which the district court denied as an unauthorized successive
motion. However, the district court subsequently granted a
certificate of appealability, acknowledging that Person’s motion
was not in fact successive, but noting that jurisdiction now
rests with this court. We vacate and remand.
“[I]t is settled law that not every numerically second
[§ 2255 motion] is a ‘second or successive’ [motion] within the
meaning of the [Antiterrorism and Effective Death Penalty Act of
1996].” In re Williams, 444 F.3d 233, 235 (4th Cir. 2006).
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“[W]hen a prisoner’s first § 2255 motion is granted to reenter
judgment and permit a direct appeal, the counter of collateral
attacks pursued is reset to zero.” In re Goddard, 170 F.3d 435,
438 (4th Cir. 1999) (internal quotation marks omitted).
Because the district court granted Person’s original § 2255
motion and reentered judgment to permit a direct appeal, the
instant § 2255 motion is not a second or successive motion
within the meaning of § 2255(h). Therefore, the district court
erred by holding that Person was required to obtain an order
from this court authorizing the district court to consider the
motion.
However, “[i]f a habeas petitioner (state or federal)
files an application for collateral relief that raises a
successful appeal claim and additional claims, any subsequent
petition will be considered ‘second or successive’ if (a) the
district court ruled on the merits of the additional claims in
the initial petition, and (b) the petitioner seeks to raise
those claims again in the subsequent petition.” Williams, 444
F.3d at 236. Therefore, to the extent Person seeks to raise
claims already rejected by the district court in his previous
§ 2255 motion, the district court is bound to provide Person
with the option of omitting the repetitive claims or having the
entire petition treated as successive. Id. at 237.
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We vacate the district court’s order dismissing
Person’s second § 2255 motion as successive and remand for
further proceedings consistent with this opinion. We 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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