US v. Gerald Felton

Filing 920090414

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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