United States of America v. Crosby, 125 S. Ct. 2641, 2648 2005

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6523
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NELSON RAFAEL ZAPATA-VICENTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-01-61; CA-04-579)
Submitted: September 19, 2005 Decided: October 13, 2005
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Nelson Rafael Zapata-Vicente, Appellant Pro Se. Stephen Wiley
Miller, Angela Mastandrea-Miller, Assistant United States
Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*We note that a certificate of appealability was granted
below.
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PER CURIAM:
Nelson Rafael Zapata-Vicente, a federal prisoner, appeals
the district court’s order construing his letter of February 14,
2005, as a successive 28 U.S.C. § 2255 (2000) motion and dismissing
the motion for lack of jurisdiction.
Upon review, we find that Zapata-Vicente’s letter is more
appropriately construed as a motion seeking relief from the
district court’s judgment pursuant to Fed. R. Civ. P. 60(b). See
Gonzalez v. Crosby, 125 S. Ct. 2641, 2648 (2005); United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003). Rather than seeking
to file new claims pursuant to § 2255, Zapata-Vicente argued in his
letter that he filed his amended § 2255 motion within the time
originally allotted to him by the district court.
Accordingly, we vacate the district court’s order and
remand for the court to consider Zapata-Vicente’s letter pursuant
to Rule 60(b). * We express no opinion as to whether Zapata-Vicente
is entitled to relief under Rule 60(b). We deny Zapata-Vicente’s
motion for appointment of counsel. 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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