United States of America v. Emmanuel, No. 00-7578, on the issue of whether a district court must notify a pro se…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARRINGTON LAMONT HARRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-90-27, CA-00-1239-1)
Submitted: November 15, 2001 Decided: February 12, 2002
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carrington Lamont Harrell, Appellant Pro Se. Clifton Thomas
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

-- 1 of 2 --

* A panel of this court recently heard argument in United
States v. Emmanuel, No. 00-7578, on the issue of whether a district
court must notify a pro se litigant that it intends to construe a
filing that is not so labeled as a § 2255 motion and afford the
movant the opportunity to withdraw the motion in order to avoid the
restrictions on second or successive motions under § 2255. This
case will not be controlled by the decision in Emmanuel, however,
as Harrell has previously filed a first § 2255 motion and therefore
was not prejudiced by the district court’s failure to provide
notice and an opportunity to withdraw prior to construing his
motion as one filed under § 2255. Harrell’s recourse is a motion
in this court under 28 U.S.C.A. § 2244 (West Supp. 2001), for
authorization to file a successive § 2255 motion.
2
PER CURIAM:
Carrington Lamont Harrell seeks to appeal the district court’s
order denying his motion filed under 18 U.S.C.A. § 3582 (West 2000
& Supp. 2001), which the district court construed as a motion
pursuant to 28 U.S.C.A. § 2255 (West Supp. 2001). * We have
reviewed the record and the district court’s opinion accepting the
recommendation of the magistrate judge and find no reversible
error. Accordingly, we deny Harrell’s motion for appointment of
counsel, deny a certificate of appealability, and dismiss the
appeal on the reasoning of the district court. See United States
v. Harrell, Nos. CR-90-27; CA-00-1239-1 (M.D.N.C. May 7, 2001). 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.
DISMISSED

-- 2 of 2 --