UNITED STATES of America, Plaintiff-Appellee, v. Daniel L. SPENCE, a/k/a Daniel Johnson, Defendant-Appellant, 38 F. App'x 893

OPINION PER CURIAM. Daniel Spence seeks to appeal the district court’s order construing Spence’s October 30, 2000 letter as a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.A. § 2255 (West Supp.2001) and denying relief under § 2255, and the district court’s denial of reconsideration of the order. Spence’s letter, filed before the expiration of the one-year limitations period for filing § 2255 claims, expressed a desire to file a § 2255 motion, and requested appointed counsel, or, in the alternative, to be moved to a federal prison.

The district court sua sponte construed the letter as a motion for relief under § 2255 and denied relief based on the issues raised in the letter. In United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002), we recently outlined the prophylactic measures a district court should follow before construing a motion not specifically denominated as a § 2255 motion as the prisoner’s first § 2255 motion.

Because of the consequences associated with converting the letter to a § 2255 motion, we conclude the district court erred when it construed Spence’s letter as his first motion filed under § 2255 without giving him proper notice. We therefore grant a certificate of appealability, vacate the district court’s order, and remand in order for the district court to provide Spence with proper notice under Emmanuel. Spence will then have the opportunity to file a timely, non-successive § 2255 motion in which he could fully develop his claims. We deny Spence’s motion for appointment of counsel.

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. VACATED AND REMANDED. We note the district court's order issued before our decision in Emmanuel and express no opinion as to the merits of Spence’s claims.