Case: 09-50923 Document: 00511124092 Page: 1 Date Filed: 05/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
____________ FILED
May 27, 2010
No. 09-50923
Summary Calendar Lyle W. Cayce
____________ Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANA JOHN ALEXANDER,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:09-CV-227
USDC No. 6:06-CR-62-1
_________________________
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Dana John Alexander, federal prisoner # 56715-180, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
motion as an unauthorized successive motion.
A COA may be granted only if the movant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). When the
*
Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR . R. 47.5.4.
Case: 09-50923 Document: 00511124092 Page: 2 Date Filed: 05/27/2010
No. 09-50923
district court denies relief on procedural grounds and does not reach the
underlying constitutional claims, “a COA should issue ...[if] the prisoner shows,
at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Although the district court informed Alexander of its recharacterization
of a pleading as a § 2255 motion, it did not inform him of the consequences of
such recharacterization on subsequent § 2255 motions or provide him with an
opportunity to withdraw or amend this motion to include all possible claims.
Thus, the recharacterized prior motion does not constitute an initial § 2255
motion that would preclude the filing of another motion as successive. See
Castro v. United States, 540 U.S. 375, 383-84 (2003).
Accordingly, we GRANT Alexander’s motion to proceed in forma pauperis
on appeal, GRANT Alexander a COA on the issue whether the district court
erred in denying his § 2255 motion as successive, VACATE the district court’s
denial of § 2255 relief, and REMAND to the district court for further
consideration. See Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).