United States v. Barber

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6524
DONALD LOUIS BARBER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-96-21, CA-02-7-1-T)
Submitted: May 29, 2002
Decided: July 15, 2002
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Donald Louis Barber, Appellant Pro Se. Thomas Richard Ascik,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BARBER
OPINION
PER CURIAM:
Donald Louis Barber seeks to appeal the district court’s orders
denying his petition for a writ of audita querela filed under the All
Writs Act, which the district court construed as Barber’s first motion
under 28 U.S.C.A. § 2255 (West Supp. 2001), and his motion filed
under Fed. R. Civ. P. 59(e). The district court did not have the benefit
of our recent decision in United States v. Emmanuel, 288 F.3d 644(4th Cir. 2002), when it recharacterized Barber’s filing as his first
§ 2255 motion. Thus, we grant a certificate of appealability, vacate
the district court’s orders, and remand in light of Emmanuel for the
district court to provide Barber with notice of its intention to
recharacterize his filing and an opportunity for him to respond by pro-
ceeding with the recharacterization to a § 2255 motion* or by electing
to have the district court address the merits of the petition for a writ
of audita querela as filed. See id. at 649-50. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED
*If Barber chooses this route, we express no opinion on the timeliness
of the motion or the claims Barber may seek to raise through amend-
ment. See 28 U.S.C.A. § 2255 (West Supp. 2001); Hill v. Braxton, 277
F.3d 701 (4th Cir. 2002); United States v. Pittman, 209 F.3d 314 (4th
Cir. 2000).