United States v. Dennis Lee Rose

74 F.3d 1234, 1996 U.S. App. LEXIS 39092, 1996 WL 15446

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 17, 1996
• Docket: 95-7220
• Status: Published

Opinion

74 F.3d 1234
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee,
v.
Dennis Lee ROSE, Defendant-Appellant.

No. 95-7220.

United States Court of Appeals, Fourth Circuit.

Submitted: December 14, 1995.
Decided: January 17, 1996.

Dennis Lee Rose, Appellant Pro Se. Julie Marie Campbell, Assistant United States Attorney, Roanoke, VA, for Appellee.

Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.

PER CURIAM:

Appellant appeals from the district court's order denying his 28 U.S.C. Sec. 2255 (1988) motion. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court.* United States v. Rose, Nos. CR-89-70-B; CA-94-648-R (W.D.Va. May 5, 1995). 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.

AFFIRMED

* In denying relief on Appellant's motion, the district court granted Appellee's motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6). Where, as in this case, the district court considered matters outside the pleadings, it should have treated the Rule 12(b)(6) motion as a motion for summary judgment. See Gay v. Wall, 761 F.2d 175, 177 (4th Cir.1985). Any error was harmless because Appellant received the necessary notice pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975)