                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6678


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DEMANI JAWARA BOSKET,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.     G. Ross Anderson, Jr., Senior
District Judge. (8:07-cr-01362-GRA-1; 8:10-cv-70154-GRA)


Submitted:   December 15, 2010            Decided:   January 18, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Demani Jawara Bosket, Appellant Pro Se.     Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Demani    Jawara      Bosket       appeals   the    district     court’s

order   denying      relief    on    his   post-judgment         motion   to   dismiss

indictment     for     lack   of    jurisdiction      that   the    district    court

recharacterized as a motion under 28 U.S.C. § 2255 (2006).                            We

vacate the order and remand for further proceedings.

              Bosket was convicted after a jury trial of possessing

a   firearm    and     ammunition     after       having   been    convicted     of   a

felony, in violation of 18 U.S.C. § 922(g)(1) (2006), and the

district court sentenced him to 96 months in prison and three

years of supervised release.               Bosket appealed, and we affirmed

on December 15, 2009.          See United States v. Bosket, 356 F. App’x

648 (4th Cir. 2009).          Bosket did not petition for certiorari in

the Supreme Court.            His conviction therefore became final on

March 15, 2010, and he had until March 15, 2011, to file a

§ 2255 motion.         See Clay v. United States, 537 U.S. 522, 527

(2003).

              On January 21, 2010, Bosket filed his pro se motion to

dismiss indictment for lack of jurisdiction.                        On January 26,

2010, the district court notified Bosket of its intention to

treat his motion as a § 2255 motion unless he informed the court

that he did not wish the matter to be treated as a § 2255 motion

within twenty days “plus three days for mail time.”                        If Bosket

did object, the district court stated that it would rule on the

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motion as styled.         Twenty days after the order was entered was

Monday, February 15, 2010, a federal holiday; and twenty-three

days after the order was entered was February 18, 2010.                          In

Bosket’s response dated February 10, 2010, post-marked February

12, 2010, and filed by the district court on February 16, 2010,

he stated that he “would not like for the courts to construe”

his motion as a § 2255 motion, and that in the future, he would

submit a proper § 2255 motion before the time expired.

            On February 17, 2010, the district court issued an

order stating that Bosket had filed no objections and the court

therefore construed his motion as one filed under § 2255.                       The

court ordered the Government to respond to the recharacterized

motion, and it did so, moving for summary judgment on the merits

of the claims raised in the initial motion.                  In his response to

the motion for summary judgment, Bosket both provided argument

as to his original motion and attached a revised § 2255 motion

raising additional claims he wanted to assert under § 2255.                      In

its   final      order,   the    district      court   denied   relief    on    the

original claims without addressing the additional claims.

            In United States v. Emmanuel, 288 F.3d 644, 649 (4th

Cir. 2002), we held that a district court must notify a prisoner

if it intends to recharacterize his motion as the movant’s first

§ 2255 motion.       If the prisoner fails to respond within the time

set   by   the    district      court,   the   court   may   proceed     with   the

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recharacterization.          If the movant agrees 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 § 2255 motion but shall rule on the merits

of the motion as filed.          Similarly, in Castro v. United States,

540 U.S. 375, 377, 383 (2003), the Supreme Court held that a pro

se   litigant    must   be    warned   before   recharacterization      of   his

motion as his first § 2255 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

Bosket’s motion as a § 2255 motion after he timely objected.

              Accordingly, we vacate the district court’s order and

remand for further proceedings.              On remand, the district court

should provide Bosket an opportunity to either proceed with his

original motion as styled, or to accept recharacterization and

amend his motion so that it contains all the § 2255 claims he

believes he has.         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




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