                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-7660



ELISHA RIGGLEMAN,

                                              Petitioner - Appellant,

          versus


STATE   OF   WEST    VIRGINIA    DEPARTMENT    OF
CORRECTIONS,

                                               Respondent - Appellee.


Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CA-04-80-2-REM)


Submitted:   March 20, 2006                   Decided:   April 5, 2006


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Elisha Riggleman, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Appellant Elisha Riggleman filed a motion in the district

court using the form for filing a motion for authorization under 28

U.S.C. § 2244 (2000) to file a second or successive 28 U.S.C.

§ 2254 (2000) petition.        The district court first construed the

motion as a § 2254 petition and referred it to a magistrate judge,

who recommended the filing be construed as a motion under § 2244

seeking   authorization   to   file   a   second   or   successive   §   2254

petition because Riggleman did not state any grounds for relief.

The magistrate judge further recommended that the § 2244 motion be

denied because Riggleman’s first § 2254 petition was dismissed as

premature and Riggleman therefore did not need authorization to

file a successive § 2254 petition.          After receiving Riggleman’s

objections, the district court adopted the magistrate judge’s

recommendations, construed the filing as a § 2244 motion and denied

the motion for authorization.      Riggleman filed a notice of appeal.

            Because courts must liberally construe pro se filings, we

find Riggleman’s filing should have been construed as a § 2254

petition.    Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994).

Because Riggleman did not use the proper form, there was no section

to state the asserted grounds for relief.          However, in his filing,

Riggleman referred to the attached state court petition for appeal

in response to the question regarding the state court grounds for

relief.     It appears from his objections to the magistrate judge’s


                                  - 2 -
report and recommendation that he referred the court to the grounds

asserted in his state court habeas corpus proceeding. We think the

better course of action would have been to construe the filing as

a § 2254 petition.1

          Accordingly, we vacate the district court’s order and

remand with instructions that Riggleman’s filing be construed as a

§ 2254 petition.    The court may decide to provide Riggleman with

the form for filing § 2254 petitions.     If Riggleman submits the

form, it should be construed as an amended § 2254 petition and,

insofar as the grounds for relief relate back to the grounds raised

in the state petition he attached to his original filing, the

petition should be considered filed for purposes of the one year

limitations rule in § 2254 proceedings as of the filing date of the

original § 2254 petition.2    See Mayle v. Felix, 125 S. Ct. 2562,

2570-71 (2005).    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

     1
      Even if the district court correctly construed the filing as
a § 2244 motion, it should have been transferred to this court. A
motion seeking authorization should be filed in the court of
appeals. The motion “shall be determined by a three-judge panel of
the court of appeals.” § 2244(b)(3)(B). Thus, the district court
was without jurisdiction to consider a § 2244 motion for
authorization.
     2
      We have no opinion as to the timeliness or merits of the
§ 2254 petition.

                                - 3 -
