Walker v. Connor

Fourth Circuit

Walker v. Connor

72 F. App'x 3

CourtCourt of Appeals for the Fourth Circuit

DecidedJuly 16, 2003

Docket02-7459

StatusUnpublished

Cited by3 cases

This text of 72 F. App'x 3 (Walker v. Connor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Walker v. Connor, 72 F. App'x 3 (4th Cir. 2003).

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Opinion

OPINION

PER CURIAM:

Ivey Walker appeals the district court’s order dismissing his 28 U.S.C. § 2241 (2000) petition. For the reasons set forth below, we vacate and remand for further proceedings.

*4 The district court dismissed Walker’s § 2241 petition on the ground that Walker filed it in the wrong court. Section 2241 petitions must be filed in the district of incarceration. In re Jones, 226 F.3d 328, 332 (4th Cir.2000). Walker is incarcerated in Kansas, but filed his § 2241 petition in the Western District of North Carolina. Although the district court is correct to the extent that Walker’s petition can be properly considered as arising under § 2241, we find that the claims raised in Walker’s petition are more properly considered pursuant to 28 U.S.C. § 2255 (2000). See § 2255; Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); In re Jones, 226 F.3d 328, 329-30 (4th Cir.2000).

We note that at the time Walker filed his petition in the district court, his direct criminal appeal was still pending in this court. Thus, a § 2255 motion would have been premature at that time. Because we recently issued a decision on direct appeal, Walker’s § 2255-type claims are now ripe for disposition. Before construing Walker’s case as one arising under § 2255, however, Walker is entitled to notice and opportunity to respond under our decision in United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002).

Accordingly, because we find that Walker seeks to raise claims that are more properly considered under § 2255, we vacate the district court’s order and remand the case for further proceedings. On remand, the district court should give Walker the notice required under Emmanuel, consider his claims under § 2255 (barring any objection from Walker), and provide him a reasonable amount of time to amend the motion to reflect any additional claims for relief. 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.

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OPINION

PER CURIAM:

Ivey Walker appeals the district court’s order dismissing his 28 U.S.C. § 2241 (2000) petition. For the reasons set forth below, we vacate and remand for further proceedings.

*4 The district court dismissed Walker’s § 2241 petition on the ground that Walker filed it in the wrong court. Section 2241 petitions must be filed in the district of incarceration. In re Jones, 226 F.3d 328, 332 (4th Cir.2000). Walker is incarcerated in Kansas, but filed his § 2241 petition in the Western District of North Carolina. Although the district court is correct to the extent that Walker’s petition can be properly considered as arising under § 2241, we find that the claims raised in Walker’s petition are more properly considered pursuant to 28 U.S.C. § 2255 (2000). See § 2255; Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); In re Jones, 226 F.3d 328, 329-30 (4th Cir.2000).

We note that at the time Walker filed his petition in the district court, his direct criminal appeal was still pending in this court. Thus, a § 2255 motion would have been premature at that time. Because we recently issued a decision on direct appeal, Walker’s § 2255-type claims are now ripe for disposition. Before construing Walker’s case as one arising under § 2255, however, Walker is entitled to notice and opportunity to respond under our decision in United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002).

Accordingly, because we find that Walker seeks to raise claims that are more properly considered under § 2255, we vacate the district court’s order and remand the case for further proceedings. On remand, the district court should give Walker the notice required under Emmanuel, consider his claims under § 2255 (barring any objection from Walker), and provide him a reasonable amount of time to amend the motion to reflect any additional claims for relief. 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.

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