UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANDREE L. SMITH,
Petitioner-Appellant,

v.
                                                                       No. 99-6240
CLERK'S OFFICE, United States
Courthouse,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-98-4227-AMD)

Submitted: June 15, 1999

Decided: September 24, 1999

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

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Affirmed in part and vacated in part by unpublished per curiam opin-
ion.

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COUNSEL

Andree L. Smith, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Andree L. Smith is serving a sentence in Maryland state prison,
having been paroled from a concurrent federal sentence. He filed a
motion for appointment of counsel in the district court, seeking a fed-
eral public defender to represent him so that he could file challenges
to his federal conviction and to the state's computation of his state
sentence. The district court construed the motion for counsel as a peti-
tion for habeas corpus, 28 U.S.C.A. § 2254 (West 1994 & Supp.
1999), and a motion challenging his federal conviction, 28 U.S.C.A.
§ 2255 (West Supp. 1999). The court dismissed the § 2254 petition
without prejudice because it was not submitted in proper form and the
§ 2255 motion as time-barred.

On appeal, Smith complains that he filed only a motion for
appointment of counsel and not a § 2254 petition or a § 2255 motion.
We agree that the district court was premature in extrapolating the
substantive claims from Smith's motion for appointment of counsel.
Therefore, we grant a certificate of appealability. We affirm the dis-
trict court's denial of Smith's motion for appointment of counsel, see
28 U.S.C.A. § 1915(e)(1) (West Supp. 1999), as the court did not
abuse its discretion in refusing to appoint counsel. Whisenant v.
Yuam, 739 F.2d 160, 163 (4th Cir. 1984). We vacate those portions
of the district court's order construing Smith's motion for counsel as
motions under § 2254 and § 2255. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and oral argument would not aid the deci-
sional process.

AFFIRMED IN PART, VACATED IN PART

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