UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6304
JAMES EDWARD RANDOLPH, a/k/a Main,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-95-407-3; CA-03-4159-3-22)
Submitted: June 30, 2004 Decided: July 16, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Edward Randolph, Appellant Pro Se. Christopher Todd Hagins,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Edward Randolph appeals the district court’s
construction of his pleading styled pursuant to Fed. R. Civ. P.
60(b), as an initial motion under 28 U.S.C. § 2255 (2000), and its
denial of the motion. Randolph correctly asserts that, prior to
its recharacterization, the district court was required to, but did
not, give him notice of its intent to recharacterize the motion,
warn him that the effect of the recharacterization is that any
subsequent § 2255 motion will be subject to the restrictions on
“second or successive” motions, and provide him with an opportunity
to withdraw or amend the motion. See Castro v. United States, 124
S. Ct. 786 (2003); see also United States v. Emmanuel, 288 F.3d
644, 649 (4th Cir. 2002).
However, we find no reversible error in this case. The
mandate of this court affirming Randolph’s conviction and sentence
issued on April 18, 1997. Randolph did not file the pleading at
issue, in which he clearly seeks habeas relief, until December 29,
2003, well beyond the one-year statute of limitations applicable to
habeas petitions. Thus, even if the district court had provided
Randolph with the requisite notice and warnings required under
Castro and Emmanuel, Randolph could not have salvaged any habeas
claim. See, e.g., Emmanuel, 288 F.3d at 650 (providing that where
the failure to provide notice to movant results in no adverse
consequences, such failure is harmless error).
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A final order in a § 2255 action is not appealable unless
a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). Randolph
may satisfy this requirement by demonstrating that reasonable
jurists would find that his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently
reviewed the record and conclude that Randolph has not made the
requisite showing because, under Emmanuel, the district court’s
dispositive procedural ruling is not reasonably debatable.
Accordingly, we deny a certificate of appealability and
dismiss Randolph’s appeal. However, we note that in the event
Randolph subsequently files a § 2255 motion, the district court’s
failure to provide Randolph with the requisite warnings associated
with recharacterizing his pleading as an initial § 2255 motion
precludes the court from considering Randolph’s presently
recharacterized § 2255 motion as his first such motion and applying
the successiveness restrictions under § 2255. See Castro, 124 S.
Ct. at 793. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
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