United States v. Farwell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-7118
KENNETH JOSEPH FARWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-01-13-A, CA-02-728-AM)
Submitted: September 16, 2002
Decided: October 10, 2002
Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Kenneth Joseph Farwell, Appellant Pro Se. Gerald J. Smagala,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FARWELL
OPINION
PER CURIAM:
Kenneth Joseph Farwell seeks to appeal the district court’s orders
denying his petition filed under 28 U.S.C. § 2241 (2000), which the
district court construed as Farwell’s first motion under 28 U.S.C.
§ 2255 (2000), and his motion for reconsideration. The district court
did not give Farwell notice and an opportunity to respond before
recharacterizing his motion as one filed under § 2255, as required by
this court’s recent decision in United States v. Emmanuel, 288 F.3d
644 (4th Cir. 2002). We therefore grant a certificate of appealability,
vacate the district court’s orders, and remand in light of Emmanuel for
the district court to provide Farwell with notice of its intention to
recharacterize his filing and an opportunity for him to respond by pro-
ceeding with the recharacterization as a § 2255 motion or by electing
to have the district court address the merits of his § 2241 petition. 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