                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-7078


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIUS HEIJNEN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.     G. Ross Anderson, Jr., Senior
District Judge. (8:03-cr-00045-GRA-6; 8:09-cv-70038-GRA)


Submitted:   January 25, 2010              Decided:   March 10, 2010


Before WILKINSON, KING, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Antonius Heijnen, Appellant Pro Se.   David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Antonius Heijnen seeks to appeal the district court’s

order recharacterizing his petition for a writ of error coram

nobis as a 28 U.S.C.A. § 2255 (West Supp. 2009) motion and

dismissing it as untimely.            The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2006).                  A certificate of appealability

will not issue absent “a substantial showing of the denial of a

constitutional    right.”            28    U.S.C.      § 2253(c)(2)     (2006).       A

prisoner     satisfies        this        standard      by    demonstrating        that

reasonable     jurists    would       find      that    any    assessment    of     the

constitutional    claims      by     the    district     court   is    debatable     or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

             Although    we    find       baseless      Heijnen’s     argument     that

§ 2255 is not a valid statute, our review of the record reveals

that the district court failed to give Heijnen notice of its

intent to recharacterize his coram nobis petition as a § 2255

motion, as required by the Supreme Court’s decision in Castro v.

United States, 540 U.S. 375, 383 (2003).                     Accordingly, we grant

a   certificate   of     appealability          on   Heijnen’s      claim   that    the

district court erred in recharacterizing his petition without

                                            2
notice,   vacate   the   district   court’s   order,   and   remand   for

further proceedings.     On remand, the district court should also

consider whether notice pursuant to Hill v. Braxton, 277 F.3d

701, 707 (4th Cir. 2002), is required.         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




                                    3
