US v. Frank Bailey
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00559-RDB-1 Copies to all parties and the district court. . [13-7863]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
January 14, 2016
February 16, 2016
Before KING, GREGORY, and WYNN, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
John J. Korzen, Director, Lauren D. Emery, Joseph B. Greener,
Third-Year Law Students, Appellate Advocacy Clinic, WAKE FOREST
UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for
Rod J. Rosenstein, United States Attorney, Michael
C. Hanlon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Frank Bailey seeks to appeal the district court’s January
17, 2013, order dismissing his 28 U.S.C. § 2255 motion.
January 22, 2013, five days after the dismissal of his § 2255
motion, Bailey wrote the district court.
The January 22 letter,
construed liberally and in a manner consistent with the views of
both Bailey and the government, is properly characterized as a
district court’s dismissal of the § 2255 motion. 1
motion, Bailey’s October 29, 2013, letter to the Clerk of this
Court, which was construed as a notice of appeal, is premature
and has no effect.
See Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56, 61 (1982).
We therefore dismiss the appeal as premature and remand the
case to the district court so that it may rule upon the January
See, e.g., United States v. Rowe, 872 F.2d 420 (4th
Cir. 1989) (unpublished table decision).
Should the district
Bailey’s appointed appellate counsel asserts that the
January 22 motion is a motion under either Rule 59 or Rule 60 of
the Federal Rules of Civil Procedure, while the government
asserts that the motion should be construed as a motion under
Rule 59. See Appellant’s Br. at 1; Appellee’s Br. at 9 n.1. We
need not decide whether the motion falls under Rule 59 or Rule
60 at this juncture, however, because either construction would
lead us to the same result. See Fed. R. App. P. 4(a)(4)(A).
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court rule adversely on the January 22 motion, Bailey may at
dismissal of the § 2255 motion, the denial of the January 22
motion, or both. 2
See Cooper v. Astrue, 480 F. App’x 724, 724
(4th Cir. 2012).
DISMISSED AND REMANDED
We suggest that the district court consider appointing
counsel for Bailey, to assist his handling of the January 22
motion proceedings and to place this matter in a proper
procedural posture. See 18 U.S.C. § 3006A(a)(2)(B).
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