                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6516


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DOUGLAS THOMAS PERSON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:03-cr-00170-BO-1; 5:10-cv-00076-BO)


Submitted:   January 31, 2011             Decided:   June 29, 2011


Before WILKINSON, KING, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Douglas Thomas Person, Appellant Pro Se.     Steve R. Matheny,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Douglas Thomas Person was convicted of possession with

intent to distribute five grams or more of cocaine base and

possession    of   a    firearm       during    and     in   relation   to   a   drug

trafficking     crime.           He     was      sentenced      to   262     months’

imprisonment.      He filed a 28 U.S.C.A. § 2255 (West Supp. 2010)

motion,   arguing,      inter    alia,    that     counsel     failed   to   file     a

direct appeal as he requested.                 See United States v. Peak, 992

F.2d 39, 42 (4th Cir. 1993).                   The district court ultimately

granted the motion for the limited purpose of allowing Person to

file an appeal, vacated the criminal judgment, and entered a new

judgment.       The     district      court,     however,      denied   relief       on

Person’s remaining claims.               We affirmed Person’s sentence on

direct appeal.         United States v. Person, 299 F. App’x 283 (4th

Cir. 2008) (No. 07-4944).             Person filed a second § 2255 motion,

which the district court denied as an unauthorized successive

motion.      However,     the    district       court    subsequently      granted    a

certificate of appealability, acknowledging that Person’s motion

was not in fact successive, but noting that jurisdiction now

rests with this court.          We vacate and remand.

            “[I]t is settled law that not every numerically second

[§ 2255 motion] is a ‘second or successive’ [motion] within the

meaning of the [Antiterrorism and Effective Death Penalty Act of

1996].”      In re Williams, 444 F.3d 233, 235 (4th Cir. 2006).

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“[W]hen a prisoner’s first § 2255 motion is granted to reenter

judgment and permit a direct appeal, the counter of collateral

attacks pursued is reset to zero.”                       In re Goddard, 170 F.3d 435,

438     (4th     Cir.    1999)     (internal             quotation     marks    omitted).

Because    the    district       court    granted          Person’s    original    §    2255

motion and reentered judgment to permit a direct appeal, the

instant    §    2255    motion    is     not       a   second   or    successive     motion

within the meaning of § 2255(h).                       Therefore, the district court

erred by holding that Person was required to obtain an order

from this court authorizing the district court to consider the

motion.

               However, “[i]f a habeas petitioner (state or federal)

files     an    application       for    collateral          relief     that    raises    a

successful appeal claim and additional claims, any subsequent

petition will be considered ‘second or successive’ if (a) the

district court ruled on the merits of the additional claims in

the   initial     petition,      and     (b)       the    petitioner    seeks   to     raise

those claims again in the subsequent petition.”                           Williams, 444

F.3d at 236.           Therefore, to the extent Person seeks to raise

claims already rejected by the district court in his previous

§ 2255 motion, the district court is bound to provide Person

with the option of omitting the repetitive claims or having the

entire petition treated as successive.                      Id. at 237.



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           We   vacate   the    district        court’s      order    dismissing

Person’s   second   § 2255    motion       as   successive    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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