
    Manuel CORTEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 03-7058.
    United States Court of Appeals, Fourth Circuit.
    Submitted Nov. 19, 2003.
    Decided Dec. 8, 2003.
    
      Manuel Cortez, Appellant pro se.
    Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.
    Vacated and remanded by unpublished per curiam opinion.
    Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
   OPINION

PER CURIAM.

Manuel Cortez appeals the district court’s order denying relief on his petition filed pursuant to 28 U.S.C. § 2241 (2000).

Cortez alleged that his conviction and sentence were invalid because the court lacked subject matter jurisdiction. The district court found that because Cortez was effectively challenging the legality of his sentence, his claim was more properly brought under 28 U.S.C. § 2255 (2000). We agree. However, the court did not give Cortez notice and an opportunity to respond before recharacterizing his petition, as required by our decision in United States v. Emmanuel, 288 F.3d 644 (4th Cir.2002). We therefore vacate the district court’s order and remand for further proceedings in light of Emmanuel.

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  