UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Joseph FARWELL, Defendant-Appellant, 47 F. App'x 682

OPINION PER CURIAM. Kenneth Joseph Farwell seeks to appeal the district court’s orders denying his petition filed under 28 U.S.C. § 2241 (2000), which the district court construed as Farwell’s first motion under 28 U.S.C. § 2255 (2000), and his motion for reconsideration. The district court did not give Farwell notice and an opportunity to respond before recharacterizing his motion as one filed under § 2255, as required by this court’s recent decision in United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002).

We therefore grant a certificate of appeal-ability, vacate the district court’s orders, and remand in light of Emmanuel for the district court to provide Farwell with notice of its intention to recharacterize his filing and an opportunity for him to respond by proceeding with the recharacterization as a § 2255 motion or by electing to have the district court address the merits of his § 2241 petition. See id. at 649-50. 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.