UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6445
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL ORIAKHI,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:92-cr-00283-MJG; 1:05-cv-02317-MJG)
Submitted: May 18, 2007 Decided: June 18, 2007
Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Daniel Oriakhi, Appellant Pro Se. Robert Reeves Harding, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Oriakhi appeals from the district court’s order
dismissing his 28 U.S.C. § 2255 (2000) motion as successive. We
previously granted a certificate of appealability, and after
further briefing, we find that Oriakhi’s motion was not successive.
Thus, we vacate the district court’s order and remand for further
proceedings.
In 1992, Daniel Oriakhi was convicted by a jury of
conspiracy to distribute heroin and possession with intent to
distribute heroin. Oriakhi was sentenced to 300 months
imprisonment, and we affirmed his convictions and sentence on
direct appeal. United States v. Oriakhi, 57 F.3d 1290 (4th Cir.
1995). On July 9, 1998, Oriakhi filed three documents, which were
docketed as a § 2255 motion, a motion to proceed in forma pauperis,
and a motion for court records. On August 3, Oriahki resent the
documents and requested that an enclosed copy be date stamped and
returned to him. He described the documents as a request for court
records with “an attached 28 U.S.C. § 2255 form, and a sworn . . .
indigent affidavit.” These documents do not appear to have been
filed separately.
On August 10, the district court entered an order
requiring the Government to respond to Oriakhi’s § 2255 motion
within sixty days. When Oriakhi received this order, he wrote a
letter to the court dated August 18, stating that his motions dated
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July 2 and August 3 were for release of court records under 28
U.S.C. § 753 (2000). He stated that his motions did “not in any
form or fashion represent, a 28 U.S.C. § 2255 motion to vacate, set
aside or correct sentence, as mis-construed by the court.” The
district court then directed the Government to answer Oriakhi’s
motion for court records. The Government promptly filed a response
to the motion for court records. However, the Government did not
address the § 2255 motion until March 5, 1999, when it filed a
motion to dismiss.
On March 11, the district court found that Oriakhi’s
§ 2255 motion was untimely and, therefore, declined to reach the
merits of Oriakhi’s transcript request. Oriakhi filed a motion for
reconsideration, stating that, because he never received any of his
requested records, he never filed a § 2255 motion. The district
court denied the motion in a margin order. We denied a certificate
of appealability and dismissed Oriakhi’s appeal. United States v.
Oriakhi, No. 99-6513 (4th Cir. Aug. 11, 1999) (unpublished). In
2001 and 2005, Oriakhi filed additional § 2255 motions. These
motions were never docketed nor ruled upon.1
In 2005, Oriakhi filed a motion for authorization to file
a successive § 2255 motion. He sought to raise a claim under
United States v. Booker, 543 U.S. 220 (2005). He also claimed that
1
In its brief, the Government appears to state that these
motions were denied; however, it provides no evidence to support
this assertion and admits that the motions were never docketed.
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his first “§ 2255 motion” should not count against him for purposes
of restrictions against second or successive motions because he did
not intend for the motion to be construed as a § 2255 motion and he
was not given notice that the district court intended to
recharacterize it or an opportunity to withdraw. He cited to
Castro v. United States, 540 U.S. 375 (2003).2
In Castro, the Supreme Court held that, before a district
court recharacterizes a motion that a pro se federal prisoner has
labeled differently as his first § 2255 motion, the court must
notify the litigant of the intended recharacterization, warn the
litigant of the possible repercussions, and provide the litigant
with an opportunity to withdraw or amend the motion. 540 U.S. at
383. If the district court fails to provide the warning, “the
motion cannot be considered to have become a § 2255 motion for
purposes of applying to later motions the law’s ‘second or
successive’ restrictions.” Id. Finding that Oriakhi’s first
§ 2255 motion was improperly recharacterized, we denied the motion
for authorization as unnecessary, citing Castro and noting that
leave from this court was not required for Oriakhi to proceed in
district court.3
2
We denied a previous motion for authorization filed by
Oriakhi in 2001, prior to the decision in Castro.
3
Oriakhi’s 2001 and 2005 § 2255 motions were neither docketed
nor considered, and thus, neither counted as Oriakhi’s “first”
§ 2255 motion. See United States v. Sosa, 364 F.3d 507, 509-10 n.2
(4th Cir. 2004).
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Oriakhi then filed the instant § 2255 motion in the district
court raising two claims: (1) ineffective assistance in failing to
properly counsel Oriakhi regarding a plea offer and
(2) unconstitutional sentence under Booker. The district court
concluded that it was without jurisdiction to consider the motion
absent authorization from this court, despite this court’s prior
ruling that authorization was unnecessary. The district court
stated that, after reviewing the record, “it is apparent that
Castro has no applicability in this case because none of the
Motions to Vacate filed by Petitioner were ever re-characterized by
this Court.” The court reasoned that this court’s erroneous order
resulted from overlooking the denial of Oriakhi’s previous motion
for authorization and from relying on Oriakhi’s misleading
description of the procedural background of the case. Oriakhi
timely appealed. After we granted a certificate of appealability,
the Government filed a brief, arguing that Oriakhi’s motion was
“clearly successive” and that this court was likely “unaware” of
the motions filed in this case.
On appeal, Oriakhi challenges the district court’s
determination that his § 2255 motion was successive. The question
is whether Oriakhi’s 1998 filings constituted a first § 2255
motion. On the one hand, Oriakhi did file a § 2255 form. On the
other hand, Oriakhi repeatedly informed the court that he did not
intend his filings to be a § 2255 motion and that he submitted the
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form as support for his motion for court records. He explained
that he sought the court records in order to file a properly
supported § 2255 motion. After a review of the record, we conclude
that Oriakhi’s first § 2255 motion did not constitute a “first”
motion under Castro.
Moreover, we concluded in an identical manner when
denying as unnecessary Oriakhi’s 2005 motion for authorization to
file a successive § 2255 motion. Thus, even if the district court
disagreed with our conclusion, it was still bound to apply our
holding. See South Atl. Ltd. P’ship v. Riese, 356 F.3d 576, 584
(4th Cir. 2004) (observing that mandate rule forecloses litigation
of issues decided by appellate court).
Accordingly, we vacate the district court’s order
dismissing Oriakhi’s motion as successive and remand for further
proceedings. We express no opinion on the timeliness or the merits
of Oriakhi’s motion. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
material before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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