Brinkley v. Pitzer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHERRELL GARY BRINKLEY,
Petitioner-Appellant,
v. No. 00-6369
P. PITZER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-98-1893, CA-99-54)
Submitted: July 20, 2000
Decided: August 9, 2000
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Sherrell Gary Brinkley, 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Unpublished opinions are not binding precedent in this circuit.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:
Sherrell Gary Brinkley seeks to appeal an order of the district court
dismissing an action construed as a motion under 28 U.S.C.A. § 2255(West Supp. 2000). He asks that the decision of the district court be
vacated and the case remanded with instructions to transfer the matter
to the United States District Court for the Eastern District of Texas,
where it was initially filed, for consideration as a petition under 28
U.S.C. § 2241 (1994).
This case was transferred to the Western District of North Carolina
from the Eastern District of Texas. The transfer order is not review-
able. See Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980). Further,
as every court to consider this case has concluded, Brinkley's chal-
lenge to his sentence was properly construed as a motion under 28
U.S.C.A. § 2255. See Swain v. Pressley, 430 U.S. 372, 381 (1977);
see also In re Vial, 115 F.3d 1192, 1194 n.4 (4th Cir. 1997); cf.
Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999). Because the
motion was successive, and because Brinkley did not obtain permis-
sion to file a successive petition, the district court properly dismissed
the motion. See 28 U.S.C.A. § 2244, 2255 (West 1994 & Supp. 2000).
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not significantly aid the decisional process.
DISMISSED
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