Cortez v. United States , 82 F. App'x 315 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MANUEL CORTEZ, 
Petitioner-Appellant,
v.  No. 03-7058
UNITED STATES OF AMERICA,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-03-285-5-HC-BO)
Submitted: November 19, 2003
Decided: December 8, 2003
Before WILKINSON and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Manuel Cortez, Appellant Pro se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 CORTEZ v. UNITED STATES
OPINION
PER CURIAM:
Manuel Cortez appeals the district court’s order denying relief on
his petition filed pursuant to 28 U.S.C. § 2241 (2000).
Cortez alleged that his conviction and sentence were invalid
because the court lacked subject matter jurisdiction. The district court
found that because Cortez was effectively challenging the legality of
his sentence, his claim was more properly brought under 28 U.S.C.
§ 2255 (2000). We agree. However, the court did not give Cortez
notice and an opportunity to respond before recharacterizing his peti-
tion, as required by our decision in United States v. Emmanuel, 288
F.3d 644 (4th Cir. 2002). We therefore vacate the district court’s
order and remand for further proceedings in light of Emmanuel.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED