IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30686 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL E. WILLIAMS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 96-CV-1152 91-CR-410-9 --------------------

August 31, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Michael E. Williams, federal prisoner #22556-034, appeals

the district court’s dismissal of his second

motion as an abuse of the § 2255 proceeding under Rule 9(b) of

the Rules Governing § 2255 Cases. He argues that the district

court’s dismissal of his first § 2255 was confusing and ambiguous

and led him to believe that he could file a second § 2255 motion.

We agree that, construing the motion as a § 2255 motion, the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. district court acted within its discretion in dismissing it as

abuse of the § 2255 proceeding. However, in dismissing

Williams’s first § 2255 motion, the district court ordered that

his claims “be dismissed without prejudice for failure to

exhaust[.]” Williams explained that he was filing his second

§ 2255 motion because the first one had been dismissed without

prejudice. In his first report and recommendation pertaining to

Williams’s second § 2255 motion, the magistrate judge noted

Williams’s explanation and noted that, if he were misled, his

remedy would be to seek an out-of-time appeal of the denial of

the first § 2255 motion. We think the better course would have

been to construe the second § 2255 motion as a Fed. R. Civ. P.

60(b) motion, seeking clarification of or challenging the merits

of the denial of the first § 2255 motion. “As a general

proposition, review of the merits of a federal prisoner’s claim

is not circumscribed by the label attached.” See United States

v. Santora,

, 42 n.1 (5th Cir. 1983).

Although some of the claims in the second § 2255 motion are

new and should have been presented in his first § 2255 motion,

construing the second § 2255 motion as a Rule 60(b) motion would

allow the district court to correct its dismissal order and

Williams to appeal the denial of his first § 2255 motion, of

which he may have been deprived. Accordingly, the dismissal of

Williams’s second § 2255 motion under Rule 9(b) is VACATED, and

the case is REMANDED for further proceedings. William’s motion

to amend his brief is GRANTED.