United States v. Barber

39 F. App'x 918

Opinion

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 re-characterize his filing and an opportunity for him to respond by proceeding 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 adequatély presented 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 amendment. 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).