Walker v. Connor ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IVEY WALKER, 
Petitioner-Appellant,
v.  No. 02-7459
N. L. CONNOR, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-97-22)
Submitted: June 24, 2003
Decided: July 16, 2003
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Ivey Walker, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 WALKER v. CONNOR
OPINION
PER CURIAM:
Ivey Walker appeals the district court’s order dismissing his 28
U.S.C. § 2241 (2000) petition. For the reasons set forth below, we
vacate and remand for further proceedings.
The district court dismissed Walker’s § 2241 petition on the ground
that Walker filed it in the wrong court. Section 2241 petitions must
be filed in the district of incarceration. In re Jones, 226 F.3d 328, 332
(4th Cir. 2000). Walker is incarcerated in Kansas, but filed his § 2241
petition in the Western District of North Carolina. Although the dis-
trict court is correct to the extent that Walker’s petition can be prop-
erly considered as arising under § 2241, we find that the claims raised
in Walker’s petition are more properly considered pursuant to 28
U.S.C. § 2255 (2000). See § 2255; Swain v. Pressley, 430 U.S. 372,
381 (1977); In re Jones, 226 F.3d 328, 329-30 (4th Cir. 2000).
We note that at the time Walker filed his petition in the district
court, his direct criminal appeal was still pending in this court. Thus,
a § 2255 motion would have been premature at that time. Because we
recently issued a decision on direct appeal, Walker’s § 2255-type
claims are now ripe for disposition. Before construing Walker’s case
as one arising under § 2255, however, Walker is entitled to notice and
opportunity to respond under our decision in United States v. Emman-
uel, 288 F.3d 644 (4th Cir. 2002).
Accordingly, because we find that Walker seeks to raise claims that
are more properly considered under § 2255, we vacate the district
court’s order and remand the case for further proceedings. On
remand, the district court should give Walker the notice required
under Emmanuel, consider his claims under § 2255 (barring any
objection from Walker), and provide him a reasonable amount of time
to amend the motion to reflect any additional claims for relief. See id.
at 649-50. We 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 AND REMANDED
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IVEY WALKER, 
Petitioner-Appellant,
v.  No. 02-7459
N. L. CONNOR, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-97-22)
Submitted: June 24, 2003
Decided: July 16, 2003
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Ivey Walker, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 WALKER v. CONNOR
OPINION
PER CURIAM:
Ivey Walker appeals the district court’s order dismissing his 28
U.S.C. § 2241 (2000) petition. For the reasons set forth below, we
vacate and remand for further proceedings.
The district court dismissed Walker’s § 2241 petition on the ground
that Walker filed it in the wrong court. Section 2241 petitions must
be filed in the district of incarceration. In re Jones, 226 F.3d 328, 332
(4th Cir. 2000). Walker is incarcerated in Kansas, but filed his § 2241
petition in the Western District of North Carolina. Although the dis-
trict court is correct to the extent that Walker’s petition can be prop-
erly considered as arising under § 2241, we find that the claims raised
in Walker’s petition are more properly considered pursuant to 28
U.S.C. § 2255 (2000). See § 2255; Swain v. Pressley, 430 U.S. 372,
381 (1977); In re Jones, 226 F.3d 328, 329-30 (4th Cir. 2000).
We note that at the time Walker filed his petition in the district
court, his direct criminal appeal was still pending in this court. Thus,
a § 2255 motion would have been premature at that time. Because we
recently issued a decision on direct appeal, Walker’s § 2255-type
claims are now ripe for disposition. Before construing Walker’s case
as one arising under § 2255, however, Walker is entitled to notice and
opportunity to respond under our decision in United States v. Emman-
uel, 288 F.3d 644 (4th Cir. 2002).
Accordingly, because we find that Walker seeks to raise claims that
are more properly considered under § 2255, we vacate the district
court’s order and remand the case for further proceedings. On
remand, the district court should give Walker the notice required
under Emmanuel, consider his claims under § 2255 (barring any
objection from Walker), and provide him a reasonable amount of time
to amend the motion to reflect any additional claims for relief. See id.
at 649-50. We 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 AND REMANDED