993 F. 2d 1541 - United States of America v. Smoot
993 F2d 1541 United States of America v. Smoot
993 F.2d 1541
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Jesse Kilton SMOOT, Defendant-Appellant.
No. 93-6176.
United States Court of Appeals,
Fourth Circuit.
Submitted: May 3, 1993
Decided: May 26, 1993
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CR-89-158-2, CA-92-547-2)
Jesse Kilton Smoot, Appellant Pro Se.
Nancy Carper Hill, Assistant United States Attorney, Charleston, West Virginia, for Appellee.
S.D.W.Va.
AFFIRMED.
Before RUSSELL and HALL, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:
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Jesse Kilton Smoot appeals from the district court's order refusing relief under 28 U.S.C. § 2255 (1988). Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit.* Accordingly, we affirm on the reasoning of the district court. United States v. Smoot, Nos. CR-89-158-2, CA-92-547-2 (S.D.W. Va. Jan. 28, 1993). 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.
AFFIRMED
Smoot does not get two collateral attacks. Although his first motion was filed under Fed. R. Crim. P. 32, Rule 32 does not provide a means for collateral attack, see United States v. Sarduy, 838 F.2d 157 (6th Cir. 1988), and thus, Smoot's motion was necessarily construed as a motion to vacate under 28 U.S.C. § 2255. The record shows that Smoot did not challenge this construction. Accordingly, Smoot's second § 2255 motion was properly dismissed as abusive