[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 14, 2005
No. 04-15159
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 94-00529-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LEON DAVIS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(July 14, 2005)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
In United States v. Davis, No. 95-5378 (decided May 8, 1997) (not
published), we affirmed appellant Anthony Leon Davis’s conviction and sentence
for possession of cocaine. Thereafter, Davis moved the district court to vacate his
conviction and sentence pursuant to 28 U.S.C. § 2255. The district court denied
his motion, and we refused to grant a certificate of appealability. On July 29,
2004, Davis moved the court to dismiss the indictment (in the case that led to his
conviction and sentence for possession of cocaine). Although Davis’s motion
stated that it was being filed pursuant to 18 U.S.C. § 3742, the district court
treated the motion as a motion filed under § 2255 and dismissed it because Davis
had not obtained leave of court as required by 28 U.S.C. §§ 2244(a) and 2255.
Davis now appeals the court’s ruling. We affirm. The court properly
treated the motion as a successive § 2255 petition.1
AFFIRMED.
1
The district court considered whether, before ruling on the motion, to advise Davis that it
would treat the motion as having been filed pursuant to § 2255. See Castro v. United States, 540
U.S. 375, 124 S. Ct. 786, 157 L. Ed. 2d 778 (2003). The court concluded that Castro’s notice
requirement only applies to a defendant’s first collateral attack on his conviction or sentence
pursuant to a motion that is not labeled a § 2255 motion. The instant motion was not Davis’s first
collateral attack on his conviction and sentence; hence, Castro notice was not required.
2