US v. Kofie Jone

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:03-cr-00047-FPS-RWT-1, 1:13-cv-00267-FPS-RWT. Copies to all parties and the district court. [1000044028]. [16-6552]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6552

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KOFIE AKIEM JONES,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Frederick P. Stamp,
Jr., Senior District Judge.
(1:03-cr-00047-FPS-RWT-1; 1:13-cv00267-FPS-RWT)

Submitted:

March 7, 2017

Decided:

March 17, 2017

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Gray R. Proctor, Orlando, Florida, for Appellant.
William
Ihlenfeld, II, United States Attorney, Robert H. McWilliams,
Jr., Assistant United States Attorney, Wheeling, West Virginia;
Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Thomas E. Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Jones

the

PER CURIAM:
Kofie

Akiem

appeals

district

court’s

orders

accepting the magistrate judge’s recommendation and dismissing
his 28 U.S.C. § 2255 (2012) motion as “second or successive”
within the meaning of § 2255(h), and denying his Fed. R. Civ. P.
59(e) motion for reconsideration. ∗

Jones argued that his § 2255

motion was not successive pursuant to Magwood v. Patterson, 561
U.S.

320

(2010),

because

his

resentencing

constituted

a

new

judgment intervening between his prior § 2255 motions and this
one.

In dismissing his motion, the district court rejected the

argument but granted him a certificate of appealability.
We recently “join[ed] the chorus of our sister circuits in
finding that when a habeas petition is the first to challenge a
new judgment, it is not second or successive . . . regardless of
whether

it

conviction.”

challenges
In

re

the

Gray,

sentence

No.

16-433,

775861, at *3 (4th Cir. Feb. 28, 2017).

or
__

the
F.3d

underlying
__,

2017

WL

In light of our holding

in Gray, we vacate the district court’s orders and remand for
further proceedings.

We dispense with oral argument because the

∗

In the first order, the district court granted Jones a
certificate of appealability as to its dispositive procedural
ruling that his § 2255 motion was second or successive within
the meaning of § 2255(h). To the extent that it is required, we
grant Jones a certificate of appealability as to the district
court’s subsequent order denying his motion for reconsideration.

2

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facts

Doc: 32

and

materials

legal
before

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contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
VACATED AND REMANDED

3