UNITED STATES v. MCCLAMMY (2020)

Carlos McClammy appeals the district court's order denying as futile his motions to amend and denying relief on his 28 U.S.C. § 2255 (2018) motion. We granted a certificate of appealability on the issue of whether, in light of United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the district court erred in denying the motions to amend by determining that McClammy's challenge to his 18 U.S.C. § 924(c) (2018) conviction in Count 4 was untimely. The Government now elects to waive its timeliness challenge to McClammy's claim but suggests that we can affirm on the alternative ground that amendment would be futile because McClammy's vagueness challenge to Count 4 is procedurally defaulted. McClammy disputes that his claim is futile and contends that remand to the district court is necessary for development of the record.

“[M]indful that we are a court of review, not of first view,” Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006) (internal quotation marks omitted), we vacate the district court's order and remand for further proceedings. We express no opinion on the ultimate resolution of McClammy's Davis claims. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED

PER CURIAM:

Vacated and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.