UNITED STATES of America, Plaintiff-Appellee, v. Gerald FELTON, Defendant-Appellant, 322 F. App'x 335

Vacated and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.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 Fel-ton 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.