United States v. Davis ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7898
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROY STEVE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-89-407-A; CA-05-1209-1)
Submitted: February 10, 2006 Decided: March 6, 2006
Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated by unpublished per curiam opinion.
Roy Steve Davis, Appellant Pro Se. Owen Matthew Kendler, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roy Steve Davis mailed a motion under 28 U.S.C. § 2244(2000) for authorization to file a second or successive 28 U.S.C.
§ 2255 (2000) motion to the United States District Court for the
Eastern District of Virginia. While Davis directed his motion to
this court, the district court improperly docketed the motion as
one in that court under § 2255. The district court then entered an
order construing the motion as one seeking authorization to file a
successive § 2255 motion and denied it. Davis timely appealed.
Under § 2244, a motion seeking authorization to file a
successive § 2255 motion “shall be determined by a three-judge
panel of the court of appeals.” § 2244(b)(3)(B). Because Davis
clearly sought authorization from this court under § 2244, the
district court lacked jurisdiction to act on it. Accordingly, we
vacate the district court’s order. By separate order entered this
day, we direct that Davis’ § 2244 motion be filed and docketed in
this court. We will then review and act on the motion in due
course.
Accordingly, we vacate the district court’s order. We
deny Davis’ motion for appointment of counsel and 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
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