                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-7128
ALLEN RAY JOHNSON,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                            (CR-01-167)

                  Submitted: September 29, 2003

                      Decided: November 4, 2003

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                             COUNSEL

Allen Ray Johnson, 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Unpublished opinions are not binding precedent in this circuit.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).
2                      UNITED STATES v. JOHNSON
                              OPINION

PER CURIAM:

  Allen Ray Johnson appeals the district court’s order denying relief
on his petition filed under 28 U.S.C. § 2241 (2000). We affirm in part,
vacate in part, and remand.

   Johnson alleged in his § 2241 petition that 21 U.S.C. § 841(a)(1)
(2000), the statute under which he was convicted, had been repealed
and, therefore, that his conviction was unconstitutional. The district
court found that Johnson could not proceed under § 2241 because he
failed to show that a motion under 28 U.S.C. § 2255 (2000), was
inadequate to test the legality of his detention. We agree and affirm
this portion of the district court’s order.

   To the extent that the district court also construed Johnson’s § 2241
petition as an initial § 2255 motion, we note that the court did not
give Johnson notice and an opportunity to respond before recharac-
terizing his petition as a § 2255 motion, as required by our decision
in United States v. Emmanuel, 288 F.3d 644 (4th Cir. 2002). We
therefore vacate this portion of the district court’s order and remand
for further proceedings in light of Emmanuel. On remand, the district
court should give Johnson the notice required under Emmanuel, con-
sider his claims under § 2255 (barring any objection from Johnson),
and provide him a reasonable amount of time to amend the motion to
reflect any additional claims for relief. See id. at 649.

   Finally, we decline to address the issues Johnson raises for the first
time on appeal. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993). 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.

                                    AFFIRMED IN PART, VACATED
                                       IN PART, AND REMANDED
