UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-7125

JIMMY LEE WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-7373

JIMMY LEE WILLIAMS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-93-72-BO, CA-96-14-4-BO, CA-96-73-4-BO)

Submitted: February 18, 1997

Decided: April 4, 1997

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

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No. 96-7125 vacated and remanded in part and affirmed in part, and
No. 96-7373 affirmed by unpublished per curiam opinion.

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COUNSEL

Jimmy Lee Williams, Appellant Pro Se. Scott L. Wilkinson, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Jimmie Lee Williams appeals the district court's orders denying his
two motions filed under 28 U.S.C. § 2255 (1994), amended by
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, and his motions to amend and for relief from
the court's orders.1 After reviewing the record, we find that the merits
of Williams's claims have never been addressed by the district court;
thus, we affirm in part but vacate and remand in part.

Williams filed his first § 2255 motion while his direct appeal was
pending in this court. Finding that Williams raised the same claims
in his § 2255 motion as his direct appeal, the district court dismissed
Williams's motion as successive and for a lack of jurisdiction. The
district court erred on both grounds.

Williams's first § 2255 motion did not raise the same claims as his
direct appeal. In his direct appeal, Williams contended that: 1) he was
denied his right to counsel of his choice; 2) the testimony of his wife
was erroneously admitted at trial; and 3) the court applied the wrong
sentencing guidelines.2 However in his § 2255 motion, Williams
_________________________________________________________________
1 United States v. Williams, Nos. CR-93-72-BO; CA-96-14-4-BO
(E.D.N.C. May 7 & 31, 1996); United States v. Williams, Nos. CR-93-
72-BO; CA-96-73-4-BO (E.D.N.C. July 15, 1996, Aug. 15, 1996).
2 United States v. Williams, 81 F.3d 1321, 1322 (4th Cir. 1996).

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asserted: 1) that the prosecution failed to disclose favorable informa-
tion; 2) that he was denied effective assistance of counsel; 3) that an
unlawful confession was erroneously admitted into evidence; and 4)
that the jury overheard a witness make prejudicial remarks outside the
courtroom. The claims Williams raised in his § 2255 motion are not
the same as those he litigated and lost on direct appeal; thus, he may
present them in a collateral proceeding.3

Additionally, the district court did have jurisdiction to address the
merits of Williams's first § 2255 motion. Section 2255 states in part,
"[a] motion for such relief may be made at any time."4 While a § 2255
motion is generally not heard where a direct appeal is pending, except
in "exceptional circumstances,"5 that does not mean that the district
court was without jurisdiction.6 Moreover, the district court's obser-
vation that Williams's direct appeal was pending before this court was
erroneous as this court decided Williams's direct appeal several days
earlier. We therefore vacate and remand Williams's first § 2255
motion because the district court has not addressed the merits of Wil-
liams's claims.

However, the district court's dismissal of Williams's second
§ 2255 motion as successive and an abuse of the writ was proper.
Williams's second § 2255 motion was successive because it raised
grounds identical to those raised in Williams's first § 2255 motion.7
Further, the district court did not abuse its discretion in denying Wil-
liams's motion for relief from the district court's order finding his
second § 2255 motion successive and abusive. It is clear from the
record that Williams's second § 2255 motion raised the same issues
as his first § 2255 motion to vacate sentence.

Accordingly, we grant a certificate of appealability, vacate the dis-
_________________________________________________________________

3 See Boeckenhaupt v. United States, 537 F.2d 1182 (4th Cir. 1976).
4 28 U.S.C. § 2255 (1994), as amended by Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1220.
5 Bowen v. Johnson, 306 U.S. 19, 26-27 (1939).
6 United States v. Taylor, 648 F.2d 565, 672 (9th Cir. 1981).
7 Kuhlmann v. Wilson, 477 U.S. 436, 445 n.6 (1986); Sanders v. United
States, 373 U.S. 1, 15-17 (1963).

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trict court's order entered on May 7, 1996, and remand to the district
court to address Williams's claims, but affirm the orders entered May
31, 1996, July 15, 1996, and August 15, 1996. Of course, we express
no opinion concerning the merits of Williams's claims or of the merit
of any substantive or procedural defense to them. Additionally, we
deny Williams's motion for bail. 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.

No. 96-7125 - VACATED AND REMANDED IN PART,
AFFIRMED IN PART
No. 96-7373 - AFFIRMED

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