Schenkelberger v. Angelone ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GORDON R. SCHENKELBERGER,
Petitioner-Appellant,
v. No. 00-7763
RONALD ANGELONE,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-00-963-AM)
Submitted: April 27, 2001
Decided: May 29, 2001
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Gordon R. Schenkelberger, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gordon R. Schenkelberger appeals the district court's order deny-
ing relief on his Fed. R. Civ. P. 60(b) motion to reconsider for lack
of jurisdiction. We vacate the district court's order and remand for
consideration of the motion on the merits.
After the district court dismissed Schenkelberger's 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2000) petition for failure to exhaust his
underlying claim in state court, Schenkelberger timely noted an
appeal (No. 00-7202). Subsequently, he filed a Rule 60(b) motion,
seeking reconsideration of the disposition of the§ 2254 petition.
Believing that the notice of appeal divested it of jurisdiction to con-
sider the Rule 60(b) motion, the district court denied the motion.
However, this court has declared that "when a Rule 60(b) motion is
filed while a judgment is on appeal, the district court has jurisdiction
to entertain the motion, and should do so promptly." Fobian v. Stor-
age Tech. Corp., 164 F.3d 887, 891 (4th Cir. 1999).
Accordingly, we vacate the order of the district court dismissing
the Rule 60(b) motion and remand for consideration of the motion on
the merits. See id. at 892. In so doing, we express no opinion on the
merits of the motion. See id. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
VACATED AND REMANDED
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