UNITED STATES of America, Plaintiff-Appellee, v. Warren THOMAS, Sr., Defendant-Appellant, 34 F. App'x 125

PER CURIAM. Warren Thomas, Sr., seeks to appeal the district court’s order denying his motion nominally filed under Fed.R.Civ.P. 60, which the district court construed as filed under 28 U.S.C.A. § 2255 (West Supp. 2001) . We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. See United States v. Thomas, Nos. CR-95-370; CA-02-152 (D.S.C. Jan. 16, 2002) .

We also note that the Thomas’ § 2255 motion is successive and, thus, is unaffected by this Court’s recent decision in Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002). 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. DISMISSED. A panel of this court recently heard argument in United States v.

Emmanuel, No. 00-7578, on the issue of whether a district court must notify a pro se litigant that it intends to construe a filing that is not so labeled as a § 2255 motion and afford the movant the opportunity to withdraw the motion in order to avoid the restrictions on second or successive motions under § 2255. This case will not be controlled by the decision in Emmanuel, however, because Thomas has previously filed a first § 2255 motion and, therefore was not prejudiced by the district court’s failure to provide him notice and an opportunity to withdraw prior to construing his motion as one filed under § 2255.

Thomas’ recourse is a motion in this court under 28 U.S.C.A. § 2244 (West 1999 & Supp.2001), for authorization to file a successive § 2255 motion.