                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-6175



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

             versus


GARRETT DON SMITH,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:04-cr-00466-GRA; 6:05-cv-02932-GRA)


Submitted:    March 13, 2006                 Decided:   October 12, 2006


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Garrett Don Smith, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

          Garrett Don Smith, a federal prisoner, seeks to appeal

the district court’s order denying his motion for summary judgment

and granting the Government an extension of time in which to

respond to his motion filed under 28 U.S.C. § 2255 (2000).        We have

reviewed the record and conclude that Smith has not made “a

substantial showing of the denial of a constitutional right.”           28

U.S.C. § 2253(c)(2) (2000).    Accordingly, we deny a certificate of

appealability and dismiss this portion of the appeal.

          Smith   also   appeals    from   the   district   court’s   order

denying relief on his claims that the court erred in relying on

prior convictions to enhance his sentence without first providing

the notice required by 21 U.S.C. § 851 (2000), and that, in light

of United States v. Booker, 543 U.S. 220 (2005), his sentence

violated the Sixth Amendment.       In this order, the district court

also granted relief under United States v. Peak, 992 F.2d 39 (4th

Cir. 1993), on Smith’s claim that counsel failed to file a notice

of appeal from the criminal judgment after being directed to do so,

vacated the criminal judgment, and reinstated the judgment to

afford Smith an opportunity to file a direct appeal.*        We note that

Smith’s direct appeal currently is pending before this court.

Because the sentencing claims on which the district court denied



     *
      Smith does not challenge on appeal the district court’s grant
of relief under Peak.

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§ 2255 relief on the merits may be raised in the reinstated direct

appeal,   we   grant   a   certificate   of   appealability,   modify   the

district court’s dismissal of Smith’s sentencing claims to be

without prejudice, and affirm the dismissal as modified.

           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;
                                                       DISMISSED IN PART




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