US v. Gerald Felton

Filing 920090414

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6452 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD FELTON, Defendant - Appellant.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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). on the We previously of granted the a certificate motion of was appealability issue whether 2255 properly dismissed as successive. Felton was not provided notice The government concedes that 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. (4th Cir. See United States v. Blackstock, 513 F.3d 128, 133 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. court's order denying the We therefore vacate the district 2255 motion as successive, and remand for consideration of the motion as Felton's first 2255 motion. dispense We deny Felton's motion for appointment of counsel and 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 2

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