                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-7400



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


BARKLEY GARDNER, a/k/a Big Black,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-95-41-8; CA-03-60-4-H)


Submitted:   May 2, 2005                    Decided:   May 26, 2005


Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Vacated and remanded by unpublished per curiam opinion.


Barkley Gardner, Appellant Pro Se.     Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Barkley   Gardner   appeals   the   district   court's   orders

dismissing his motion to vacate under 28 U.S.C. § 2255 (2000) and

denying his motion to alter or amend his judgment pursuant to Fed.

R. Civ. P. 59(e) and 60(b).   We previously issued an order granting

a certificate of appealability as to Gardner’s claim that the

district court erroneously dismissed his § 2255 motion, filed May

5, 2003 (entered May 6, 2003), as successive.            After receiving

additional briefing on this issue, we now vacate the district

court's orders and remand for further proceedings.

          In 1997, following a month-long jury trial, Barkley

Gardner (“Gardner”) and several codefendants were convicted in the

Eastern District of North Carolina on racketeering, drug and

violent crime charges.   Gardner was sentenced to life in prison.

Gardner’s conviction and sentence were affirmed by this court, and

the Supreme Court denied certiorari.     United States v. Celestine,

2002 WL 1821971 (4th Cir. Aug. 9, 2002) (No. 97-4219(L)), cert.

denied sub nom. Gardner v. United States, 537 U.S. 1095 (2002)

(unpublished).

          While Gardner’s direct appeal was pending before this

court, on December 24, 1997, he filed a motion under 28 U.S.C.

§ 2255 (2000), alleging claims of ineffective assistance of counsel

during his trial.   The district court dismissed the § 2255 motion

because the direct appeal was still pending and had not been


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decided. The dismissal order did not mention or address the merits

of the § 2255 motion.

            After his direct appeal became final, Gardner timely

filed another § 2255 motion for relief from his conviction and

sentence, which was dismissed by the district court as successive.

Within ten days of this order, Gardner filed for relief from

judgment, pursuant to Fed. R. Civ. P. 59(e) and 60(b), asking the

district court to reconsider its ruling that the § 2255 motion was

successive.    The district court denied that motion.

            We note that Gardner’s first § 2255 motion was not

decided on the substantive merits of the claims, nor was it

dismissed     as   untimely   filed   under   the   AEDPA’s    statute   of

limitations.       Rather, the order reflects that the motion was

dismissed as premature, because Gardner’s direct appeal in this

court was still pending at that time.         When a first § 2255 motion

is disposed of without a decision on the merits, such as when it is

dismissed as prematurely filed, the petitioner does not need

authorization to file a second habeas action.                 See Slack v.

McDaniel, 529 U.S. 473, 478 (2000) (holding that when initial

habeas petition is dismissed for failure to exhaust state remedies,

and not based on adjudication of the merits, subsequent habeas

petition is not successive); Villanueva v. United States, 346 F.3d

55, 60 (2d Cir. 2003) (citing Stewart v. Martinez-Villareal, 523

U.S. 637, 643-44 (1998) (ruling that a § 2255 motion will not be


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considered    an   adjudication   on   the   merits    for   successiveness

purposes if, among other circumstances, the motion was dismissed as

premature).

          Accordingly, we vacate the district court's orders and

remand for further proceedings consistent with this opinion.            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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