[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 07, 2002
No. 01-12181 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00097-CV-4
HERNAN O’RYAN CASTRO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 7, 2002)
Before WILSON, RONEY and FAY, Circuit Judges.
WILSON, Circuit Judge:
We vacate our prior opinion, which was reported at 277 F.3d 1300, and
substitute this opinion in its place.
Hernan O’Ryan Castro appeals the district court’s dismissal of his habeas
corpus petition, which was filed pursuant to 28 U.S.C § 2255. The district court
concluded that the petition was successive under § 2255, as amended by the 1996
Antiterrorism and Effective Death Penalty Act (AEDPA), and thus not entitled to
consideration.
The dismissal of O’Ryan Castro’s petition raises an issue of first impression
in this Circuit: when a district court recharacterizes a federal prisoner’s
postconviction motion as a petition under § 2255, does that render the prisoner’s
subsequent attempt to file a § 2255 petition a “second or successive” petition
within the purview of the AEDPA amendments? We hold that under the AEDPA,
O’Ryan Castro’s subsequent § 2255 petition was properly deemed successive.
However, due to the strict limitations the AEDPA imposes on petitioners who wish
to file successive § 2255 petitions, we suggest that in the future, when a district
court unilaterally recharacterizes a prisoner’s pleading as a § 2255 petition, the
judge should also warn the petitioner of the consequences of this recharacterization
– that this recharacterized petition may be his first and only chance to seek relief
under § 2255.
BACKGROUND
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In 1992, O’Ryan Castro was convicted and sentenced to twenty years of
imprisonment for conspiracy to possess with the intent to distribute cocaine in
violation of 21 U.S.C. § 846, possession with the intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1), and conspiracy to import cocaine in violation of
21 U.S.C. § 963. We affirmed the convictions and sentence on March 24, 1994.
On July 11, 1994, O’Ryan Castro filed a pro se Motion For New Trial pursuant to
Federal Rule of Criminal Procedure 33 based upon newly discovered evidence.
The evidence consisted of proof that a witness, who testified against him at trial,
had entered into an immunity agreement with the government. The government
submitted a response in which it stated that it did not object to the motion as
demanding relief under both Rule 33 and § 2255. O’Ryan Castro then filed a pro
se reply in which he explained that he had filed his motion properly under Rule 33.
The district court treated O’Ryan Castro’s motion as requesting relief pursuant to
both Rule 33 and § 2255 and denied it on October 28, 1994. We affirmed the
district court’s ruling.
On April 22, 1997, O’Ryan Castro filed his first self-styled § 2255 habeas
petition, alleging, among other things, that he failed to receive effective assistance
of counsel in violation of the Sixth Amendment. The district court denied this
petition and O’Ryan Castro appealed. After granting a certificate of appealability
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on the ineffective assistance claim, we vacated the order denying his petition and
remanded the matter for further evidentiary determinations. We also instructed the
district court to examine the record to determine whether O’Ryan Castro’s petition
was successive. The district court concluded that the petition was successive and
dismissed it due to its failure to meet the particular requirements imposed by the
amendments to § 2255 regarding successive petitions.
STANDARD OF REVIEW
“We review de novo a district court’s denial of habeas corpus relief.”
Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001), cert. denied, __ U.S.
__ (2002). “A district court’s factual findings in a habeas corpus proceeding are
reviewed for clear error.” Id.
DISCUSSION
When O’Ryan Castro filed his motion for new trial pursuant to Rule 33
based upon newly discovered evidence, the district court recharacterized his Rule
33 motion as both a motion for a new trial and a § 2255 motion. As the district
court explained, O’Ryan Castro’s claims were based upon his constitutional right
to due process and were more properly raised in a § 2255 petition.
District courts have always had the power to recharacterize pro se
petitioners’ motions. In fact, due to the frequency in which pro se litigants draft
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incognizable motions, “[f]ederal courts have long recognized that they have an
obligation to look behind the label of a motion filed by a pro se inmate and
determine whether the motion is, in effect, cognizable under a different remedial
statutory framework.” United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir.
1990). This accommodation was the result of the time-honored practice of
construing pro se plaintiffs’ pleadings liberally. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam). In accordance with this practice, “district courts
routinely convert post-conviction motions of prisoners who unsuccessfully [seek]
relief under some other provision of law into motions made under . . . § 2255 and
proceed to determine whether the prisoner was entitled to relief under that statute.”
Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) (per curiam).
In this particular case, the district court recharacterized O’Ryan Castro’s
motion as both a Rule 33 motion and § 2255 petition in 1994. The AEDPA took
effect approximately two years later, on April 24, 1996. The AEDPA, which
amended § 2255, bars federal prisoners from attacking their convictions through
successive habeas corpus petitions except in very limited circumstances. 28 U.S.C.
§ 2255. Specifically, successive applications may be heard only after an appellate
court certifies the petition, because it contains:
(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
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convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255.
In 1997, a year after the AEDPA was enacted, O’Ryan Castro filed a § 2255
petition, arguing ineffective assistance of counsel. Despite the fact that O’Ryan
Castro filed his first recharacterized Rule 33 and § 2255 petition before the
AEDPA’s effective date, we must apply the restrictions set forth under the
AEDPA. Congress made no exceptions for those who had filed their § 2255
petitions before the AEDPA was enacted and were now filing their second
petitions after the effective date of the AEDPA. Therefore, a second petition has
the capacity to trigger the procedural strictures that the AEDPA attaches to
successive habeas petitions. See Raineri v. United States, 233 F.3d 96, 99 (1st Cir.
2000). “If a district court receiving a motion under some other provision of law
elects to treat it as a motion under § 2255 and then denies it, that may cause the
movant’s subsequent filing of a motion under § 2255 to be barred as” successive
under the AEDPA. Adams, 155 F.3d at 583.
In this case, the ineffective assistance of counsel claim was available to
O’Ryan Castro at the time he filed his initial motion for new trial, and he had an
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opportunity to raise this claim during the adjudication of his recharacterized § 2255
petition. Therefore, this subsequent § 2255 petition, filed three years later, is
successive because it does not meet either of the two requirements found under the
AEDPA – O’Ryan Castro’s second petition does not contain newly discovered
evidence,1 nor does the second petition address a new rule of constitutional law.
While we must follow the restrictions on successive petitions as laid out by
the AEDPA and find O’Ryan Castro’s petition successive under the AEDPA, we
can suggest that in the future, district courts should warn petitioners of the
consequences of recharacterizing their motions as § 2255 petitions. We have
substantial fairness concerns with the result in this case. These same fairness
concerns have been articulated by the First Circuit in Raineri. 233 F.3d at 99.
The petitioner in Raineri, like O’Ryan Castro, brought a Motion for
Correction of Sentence and/or New Trial pursuant to Federal Rule of Criminal
Procedure 35 and/or Rule 33 prior to the AEDPA’s effective date. Id. at 98. The
district court, acting sua sponte, found Rules 33 and 35 inapplicable and
recharacterized the motion as an application for relief under § 2255. Id. The
petitioner submitted a subsequent motion styled as a § 2255 petition, which the
1
According to the magistrate judge, O’Ryan Castro was “well aware of the
circumstances surrounding his post-arrest statements prior to his trial and the filing
of his motion.”
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district court deemed successive and thus dismissed for failure to obtain the
requisite authorization to proceed with a successive petition. Id. at 99. In
reversing this dismissal, the First Circuit concluded that “because the court acted
sua sponte and without any advance notice to the petitioner, [it could not] treat the
earlier pleading as a ‘first’ habeas petition for AEDPA purposes.” Id. at 100–01.
The court held “that when a district court, acting sua sponte, converts a post-
conviction motion filed under some other statute or rule into a section 2255
petition without notice and an opportunity to be heard (or in the alternative, the
pleader’s informed consent), the recharacterized motion ordinarily will not count
as a ‘first’ habeas petition sufficient to trigger AEDPA’s gatekeeping
requirements.” Id. at 100.
We are constrained, in this Circuit, to disagree with the holding in Raineri
because of our view that Congress, in enacting the AEDPA, imposed further
restrictions on a prisoner’s ability to file a second § 2255 petition. Felker v.
Turpin, 518 U.S. 651, 664 (1996) (“The [AEDPA] also codifies some of the pre-
existing limits on successive petitions, and further restricts the availability of relief
to habeas petitioners.”). Thus, if we were to relieve an entire class of petitioners
from any restriction at all on the filing of a second motion simply because their
first motions had been recharacterized, we might undermine the congressional
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purpose behind the AEDPA, which is to limit successive § 2255 petitions. Without
being given any additional instruction by Congress on this particular matter, we
must apply the AEDPA restrictions to successive § 2255 petitions and find O’Ryan
Castro’s petition successive.2
However, we agree with the First Circuit’s remarks that a district court
should not “extinguish the petitioner’s one clear chance at habeas relief under the
AEDPA” without the petitioner’s informed consent. Raineri, 233 F.3d at 100.
Therefore, we feel we must note that in future cases where the petitioner is not
filing a second petition, but rather is asking to withdraw his motion or to include
additional claims after a district court has decided to recharacterize the initial
motion as a § 2255 petition, we would agree with a clear majority of the circuits
that district courts should warn prisoners of the consequences of recharacterization
and provide them with the opportunity to amend or dismiss their filings. United
States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999) (stating that “upon receipt of pro
2
Incidentally, Congress could have made an exception to the AEDPA rules
involving second motions and petitions for this set of circumstances, but it did not
do so. The rule as written by Congress applies across the board to all second
filings, except in the two carefully limited, narrow circumstances that are specified
in the statute. See 28 U.S.C. § 2255. Therefore, we cannot substitute our judgment
regarding this matter for that expressed by Congress and must apply the AEDPA to
all petitioners whether or not their initial recharacterized § 2255 petitions were
filed before or after the AEDPA was enacted.
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se pleadings challenging an inmate’s conviction or incarceration – whether styled
as a § 2255 motion or not – a district court should issue a notice to the petitioner
regarding the effect of his pleadings. This notice should advise the petitioner that
he can (1) have his motion ruled upon as filed; (2) if his motion is not styled as a §
2255 motion have his motion recharacterized as a § 2255 motion and heard as
such, but lose his ability to file successive petitions absent certification by the court
of appeals; or (3) withdraw the motion, and file one all-inclusive § 2255 petition
within the one-year statutory period.”); Adams, 152 F.3d at 584 (holding that “[a]t
least until it is decided whether such a conversion or recharacterization can affect
the movant’s right to bring a future habeas petition, district courts should not
recharacterize a motion purportedly made under some other rule as a motion made
under § 2255 unless (a) the movant, with knowledge of the potential adverse
consequences of such recharacterization, agrees to have the motion so
recharacterized, or (b) the court finds that, notwithstanding its designation, the
motion should be considered as made under § 2255 because of the nature of the
relief sought, and offers the movant the opportunity to withdraw the motion rather
than have it so recharacterized”); see also Henderson v. United States, 264 F.3d
709, 711 (7th Cir. 2001) (holding that a court should not deem a Rule 33 or other
mislabeled motion a § 2255 motion “unless the movant has been warned about the
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consequences of his mistake”); United States v. Kelly, 235 F.3d 1238, 1242 (10th
Cir. 2000) (“[W]e hold that district courts should use the procedure adopted in
Adams for dealing with pro se post-conviction motions not expressly made under §
2255 . . . .”); United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (adopting
the procedure set forth in Adams to address circumstances where a court is
presented with a pro se motion that could be recharacterized as a § 2255 motion).
Therefore, we conclude that under the AEDPA’s strict limitations, O’Ryan
Castro’s petition is successive. However, in the future, we urge district courts to
be aware of these substantial fairness concerns and warn petitioners of the
consequences of the recharacterization of their filings as § 2255 petitions.
CONCLUSION
The district court’s dismissal of O’Ryan Castro’s § 2255 petition is hereby
affirmed. We find that O’Ryan Castro’s § 2255 petition is successive.
AFFIRMED.
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RONEY, Circuit Judge, dissenting:
I respectfully dissent. I would reverse the dismissal of Castro’s section 2255
motion as successive and remand for consideration on the merits following the
reasoning of the First Circuit’s opinion in Raineri v. United States, 233 F. 3d 96
(1st Cir. 2000).
The decision here is in direct conflict with Raineri, the only case cited
directly addressing a pre-AEDPA motion that was “converted” to a section 2255
motion, followed by a post-AEDPA section 2255 motion. On facts very similar to
these, the Raineri court held that a sua sponte recharacterization ordinarily will not
count as a first petition and remanded the case back to the district court for
consideration of Raineri’s section 2255 motion on the merits. See also cases
involving post-AEDPA converted motions: Adams v. United States, 155 F.3d 582
(2d Cir. 1998) (movant must know of potential adverse consequences of
recharacterization and be given the opportunity to withdraw motion); United
States v. Miller, 197 F.3d 644 (3d Cir. 1999) (court must issue notice of the effect
of recharacterization and offer the opportunity to withdraw motion); United States
v. Seesing, 234 F.3d 456 (9th Cir. 2000) (movant must know consequences of
recharacterization, or the purpose of aiding pro se petitioner is frustrated); United
States v. Kelly, 235 F.3d 1238 (10th Cir. 2000) (following Adams); Henderson v.
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United States, 264 F.3d 709, 711 (7th Cir. 2001) (even though the district court
converted and denied a Rule 33 motion, “we won't deem a Rule 33 (or other
mislabeled motion) a section 2255 motion unless the movant has been warned
about the consequences of his mistake.”)
The Fifth Circuit case of In Re Tolliver, 97 F.3d 89 (5th Cir. 1996), involved
a post-AEDPA, not a pre-AEDPA “converted” motion, in which the petitioner had
received full relief on his prior motion, relief which could have been granted only
upon a “conversion” to a § 2255 motion, and relief which the petitioner readily
accepted.
We have found no case in which a pre-AEDPA motion that was “converted”
by the court and then denied barred a second post-AEDPA § 2255 motion.
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