                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-6452


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GERALD FELTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Fox, Senior
District Judge. (5:93-cr-00123-F; 5:08-cv-00050-F)


Submitted:    March 27, 2009                 Decided:   April 14, 2009


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Gerald Felton, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Gerald      Felton        seeks    to    appeal     the      district       court’s

order denying as successive his motion under 28 U.S.C.A. § 2255

(West    Supp.    2008).            We    previously       granted          a    certificate      of

appealability         on   the      issue    of       whether    the     § 2255      motion      was

properly dismissed as successive.                       The government concedes that

Felton    was     not      provided        notice       that     his     prior      filing       was

construed as a § 2255 motion, and further notes that Felton was

not    informed       that     his       current       motion    was     considered         to   be

successive.       See United States v. Blackstock, 513 F.3d 128, 133

(4th    Cir.    2008).         As    such,       the    government          acknowledges,        the

instant motion under § 2255 should be considered Felton’s first

such motion.

               We have carefully reviewed the record and agree with

the government’s position.                       We therefore vacate the district

court’s    order       denying       the     § 2255       motion       as       successive,      and

remand for consideration of the motion as Felton’s first § 2255

motion.    We deny Felton’s motion for appointment of counsel and

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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