                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-7978


ANTHONY PROVENZALE,

                Petitioner – Appellant,

          v.

UNITED STATES OF AMERICA,

                Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
Chief District Judge. (5:09-hc-02117-FL)


Submitted:   June 23, 2010                 Decided:   July 16, 2010


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Anthony Provenzale, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

             Federal       prisoner      Anthony     Provenzale       appeals      the

district court’s order finding that his 28 U.S.C.A. § 2241 (West

2006 & Supp. 2010) petition should have been brought as a 28

U.S.C.A.     §    2255    (West   Supp.     2010)    motion,    and   refusing      to

convert the petition because a § 2255 motion would be successive

and    unauthorized.        We    vacate    the   district     court’s     order   and

remand for further proceedings.

             We find that the district court correctly determined

that    Provenzale       should   have     brought   his   claims     in    a   § 2255

motion.      A federal prisoner such as Provenzale who seeks to

challenge the legality of his conviction or sentence generally

must proceed pursuant to § 2255, with § 2241 petitions reserved

for challenges to the execution of the prisoner’s sentence.                        In

re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).                          In limited

circumstances, however, § 2255 is “inadequate or ineffective” to

test the legality of the detention.

             In those cases, the prisoner “may file a petition for

a writ of habeas corpus in the district of confinement pursuant

to § 2241.”       In re Jones, 226 F.3d 328, 333 (4th Cir. 2000).                   In

Jones, this court concluded that a § 2255 motion is inadequate

or ineffective, and a § 2241 petition may be used to test the

legality of a conviction, only when certain criteria are met.

See    id.   at    333-34.        In     his   self-styled      § 2241      petition,

                                           2
Provenzale    asked       the   district    court     to    enter     a    new    judgment

acquitting him of his conviction or, in the least, reduce his

sentence.          However,      Provenzale      cannot       satisfy        the        Jones

criteria.      Thus, the district court correctly determined that

Provenzale should have brought his claims in a § 2255 motion.

            We nonetheless find that the district court erred when

it found that it could not convert Provenzale’s petition into a

§ 2255 motion because he previously filed a § 2255 motion and

failed to obtain certification to file a successive motion.                               It

is true that “[a] second or successive [§ 2255] motion must be

certified     as    provided      in   section       2244    by   a       panel    of    the

appropriate      court     of   appeals.”       28    U.S.C.A.        § 2255(h)         (West

Supp.   2010).       An    initial     habeas   petition      generally           does    not

count for purposes of the “second or successive” rule, however,

if it was voluntarily withdrawn by the petitioner.                           See, e.g.,

Thai v. United States, 391 F.3d 491, 495-96 (2d Cir. 2004);

Haro-Arteaga v. United States, 199 F.3d 1195, 1196-97 (10th Cir.

1999); Garrett v. United States, 178 F.3d 940, 942-43 (7th Cir.

1999) (per curiam); Alexander v. Johnson, 163 F.3d 906, 908-09

(5th Cir. 1998).          Provenzale did not concede upon withdrawal of

his first § 2255 motion that the motion lacked merit, Thai, 391

F.3d at 495-96; Vancleave v. Norris, 150 F.3d 926, 928 (8th Cir.

1998), and it is not apparent that he withdrew his motion to

obtain a tactical advantage in the face of impending defeat,

                                           3
Garrett,    178    F.3d    at    943.      Thus,        we    find    that       Provenzale’s

original § 2255 motion does not bar the filing of another § 2255

motion    without    pre-filing         authorization,          and       that    the   § 2241

petition may be converted into a § 2255 motion if Provenzale

agrees. 1

             Despite      the   foregoing,        the    district         court    correctly

observed that if it construed Provenzale’s petition as a § 2255

motion,     it    would   lack    jurisdiction           to    entertain          the   motion

because, having been sentenced in the District Court for the

Northern District of Ohio, Provenzale was required to pursue his

claims in that court.             See 28 U.S.C.A. § 2255(a) (West Supp.

2010).      Accordingly, if Provenzale agrees to have his petition

recharacterized, the district court must determine whether it

would be in the interests of justice to transfer the motion to

the Ohio district court.           See 28 U.S.C. § 1631 (2006) (providing

that if a court finds a lack of jurisdiction, “the court shall,

if it is in the interest of justice, transfer such action or

appeal to any other such court in which the action or appeal

could     have     been    brought       at       the    time        it    was     filed    or

noticed . . .”).

     1
       We note that before characterizing Provenzale’s filing as
a § 2255 motion, the district court must provide Provenzale with
the proper notice and an opportunity to respond as required by
Castro v. United States, 540 U.S. 375, 377 (2003).     See United
States v. Blackstock, 513 F.3d 128, 132-35 (4th Cir. 2008).



                                              4
              Accordingly, although we deny Provenzale’s motion for

appointment of counsel, we vacate the district court’s order and

remand   to    the   district   court       for   further    proceedings. 2     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




     2
       We, of course, express no opinion as to the timeliness or
merits of Provenzale’s claims.



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