                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                   No. 14-7707


RICHARD A. THURSTON,

                   Petitioner - Appellant,

           v.

STATE OF MARYLAND,

                   Respondent - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:13-cv-01766-JFM)


Submitted:      April 20, 2015                        Decided:   April 30, 2015


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Affirmed   in    part;   vacated    in   part    by   unpublished   per   curiam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


Richard A. Thurston, Appellant Pro Se.      Edward John Kelley,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Richard A. Thurston, a Maryland inmate, seeks to appeal the

district court’s order denying relief on his petition for a writ

of error coram nobis and dismissing the petition as untimely to

the extent it could be construed as a petition filed pursuant to

28 U.S.C. § 2254 (2012).              We affirm the district court’s denial

of relief on Thurston’s petition for a writ of error coram nobis

for   the    reasons       stated    by    the      district       court.         Thurston    v.

Maryland,      No.        1:13-cv-01766-JFM           (D.      Md.,      Nov.      4,   2014).

However, we vacate that portion of the district court’s order

contruing      the    petition       as    one       filed   pursuant        to    28   U.S.C.

§ 2254.

       A   district       court   must     first      give     a    prisoner       notice    and

opportunity     to     respond      before          construing       a   mislabeled     post-

conviction motion as an initial § 2254 petition.                                    Castro v.

United      States,    540    U.S.    375,          383   (2003);        United    States    v.

Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002), overruled in part

on other grounds by Castro, 540 U.S. at 383, as recognized in

United States v. Blackstock, 513 F.3d 128, 133 (4th Cir. 2008).

In    Emmanuel,      we    held     that    a       district       court    must    notify    a

prisoner if the court intends to recharacterize a motion as the

movant’s first federal habeas petition.                            If the prisoner fails

to respond within the time set by the district court, the court

may proceed with the recharacterization.                           If the movant agrees

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to recharacterization, the court should permit amendments to the

motion.    If, however, the movant objects to recharacterization,

the court should not treat the motion as a § 2254 or § 2255

motion but must rule on the merits of the motion as filed.                     288

F.3d at 649.           Similarly, in Castro, 540 U.S. at 377, 383, the

Supreme Court held that a pro se litigant must be warned before

a motion is recharacterized as his first federal habeas motion,

and the district court must furthermore “provide the litigant an

opportunity to withdraw the motion or to amend it so that it

contains all the § 2255 claims he believes he has.”

     Here,       the    district   court       erred   by    treating    Thurston’s

petition as a § 2254 petition after he timely objected to such

treatment.       Accordingly, we vacate that portion of the district

court’s order.         We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    this    court    and   argument      would   not   aid   the   decisional

process.

                                                                AFFIRMED IN PART;
                                                                  VACATED IN PART




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