UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6900
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNY JOSEPH, a/k/a Joe Sanders,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Cameron McGowan Currie, District
Judge. (4:00-cr-00067-CMC-1)
Submitted: November 17, 2011 Decided: November 29, 2011
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Johnny Joseph, Appellant Pro Se. Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Joseph appeals from the district court’s order
construing his motion to reopen his criminal proceeding as a
successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion and
dismissing it as such. On appeal, Joseph asserts that his
motion was improperly recharacterized. We affirm.
In Castro v. United States, 540 U.S. 375 (2003), 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 pro se
litigant that it intends to recharacterize the pleading, warn
the litigant that this recharacterization means that any
subsequent § 2255 motion will be subject to the restrictions on
“second or successive” motions, and provide the litigant an
opportunity to withdraw the motion or amend it so that it
contains all the § 2255 claims he believes he has. 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. Because Joseph’s motion to
reopen was not construed as his first § 2255 motion, Castro’s
holding is inapplicable. Joseph’s prior § 2255 motion already
restricted any second or successive motions, so any improper
recharacterization was harmless.
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Moreover, neither the federal statutes nor the Rules
of Criminal and Appellate Procedure provide for a motion to
reopen or a motion for reconsideration in a criminal case.
Joseph must seek relief under § 2255 or 28 U.S.C.A. § 2241 (West
2006 & Supp. 2011). See United States v. Breit, 754 F.2d 526,
530-31 (4th Cir. 1985). Accordingly, the district court’s
decision to recharacterize the motion was proper as there was no
other avenue through which Joseph could raise his claims.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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