UNITED STATES of America, Plaintiff-Appellee, v. Edward CALLOWAY, a/k/a Stink, Defendant-Appellant, 134 F. App'x 629

ON REHEARING PER CURIAM: Calloway filed on April 22, 1996, a § 2255 motion seeking relief from his criminal conviction in case no. 2:92erll3. This motion was denied by the district court April 3, 1997, and was affirmed by this court March 19,1998. The present § 2255 motion was filed September 3, 2002, again seeking relief from the same criminal conviction and was denied by the district court on October 31, 2002, as successive, Calloway not having received previous authority from this court to file the same. A Rule 59(

e) motion to alter or amend the district court’s order of October 31, 2002, was denied by the district court on January 16, 2003, because the § 2255 petition was successive. On appeal from the decision of the district court of October 31, 2002, we considered the Rule 59(

e) motion to have been untimely and thus the appeal was not considered on its merits, rather on another ground. Upon a petition for rehearing we have determined that our decision was erroneous in denying the Rule 59(

e) motion as untimely. So we consider the petition for rehearing on its merits and reconsider the merits of the decision of the district court. This § 2255 petition was filed in this case September 3, 2002, in case no. 2:92crll3. The petition stated on its face that it was a petition under 28 U.S.C. § 2255, thus there was no misconstruction or labeling issues under United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002).

The § 2255 motion was correctly denied by the district court as successive: “As Calloway’s first habeas petition was decided on the merits, his second petition qualifies as a ‘second or subsequent’ petition, despite his claims to the contrary.” See United States v. Edward Calloway, No. 2:92cr113 (E.D.Va. Jan. 16, 2003) (order denying motion to alter or amend judgment). The district court even advised Calloway that he must receive an authorization from this court, giving our mailing address, before the district court might consider the § 2255 motion for relief on its merits.

We affirm the judgment of the district court for the reasons stated in its opinion. Calloway must get leave of .this court before he may proceed under § 2255. See 28 U.S.C. § 2244, 2255. AFFIRMED