                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued February 20, 2002     Decided July 19, 2002 

                           No. 00-3020

                    United States of America, 
                             Appellee

                                v.

                  Michael Palmer, a/k/a James, 
                     a/k/a Knot, a/k/a Tony, 
                            Appellant

          Appeal from the United States District Court 
                  for the District of Columbia 
                        (No. 89cr00036-01)

     Sandra G. Roland, Assistant Federal Public Defender, 
argued the cause for the appellant.  A. J. Kramer, Federal 
Public Defender, was on brief.

     David B. Goodhand, Assistant United States Attorney, 
argued the cause for the appellee.  Kenneth L. Wainstein, 
United States Attorney at the time the brief was filed, and 

John R. Fisher and Thomas J. Tourish Jr., Assistant United 
States Attorneys, were on brief.  Mary-Patrice Brown, Assis-
tant United States Attorney, entered an appearance.

     Before:  Henderson, Randolph and Rogers, Circuit Judges.

     Opinion for the court filed by Circuit Judge Henderson.

     Karen LeCraft Henderson, Circuit Judge:  Michael Palm-
er (Palmer) appeals the dismissal of his petition to vacate his 
criminal conviction.  In particular, he challenges the district 
court's holding that the Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 
1214 (1996) (codified in various sections of Title 28 of the 
United States Code), applies to his petition notwithstanding, 
he argues, that it merely amends a pre-AEDPA section 2255 
petition filed on his behalf by the Office of the Federal Public 
Defender (FPD).  Palmer also contends that his motion for a 
new trial, made under Federal Rule of Criminal Procedure 33 
and recharacterized by this court sua sponte as a section 2255 
petition, does not constitute a "first" section 2255 petition and 
thus the district court wrongly concluded that his current 
section 2255 petition is "successive" within the meaning of the 
AEDPA.  This case raises an issue of first impression in our 
circuit:  whether this court's (or a district court's) treatment 
of a federal prisoner's motion for any post-conviction relief 
(including a new trial) as a section 2255 petition renders a 
subsequent section 2255 petition "second or successive" and 
thus governed by the AEDPA's procedural limitations.  
While we agree that the AEDPA applies to Palmer's section 
2255 motion, we nonetheless conclude that his motion is not 
successive and therefore reverse the dismissal of Palmer's 
motion, remanding for further proceedings.

                                I.

     In a 23-count indictment filed in 1989, the United States 
charged Palmer and seven co-defendants with multiple nar-
cotics and firearm offenses.  Following a jury trial, Palmer 
was convicted on 12 counts, including conspiracy to distribute, 
and to possess with intent to distribute, cocaine base and 

cocaine powder in violation of 21 U.S.C. s 846;  operating a 
continuing criminal enterprise which involved the distribution 
of at least 1500 grams of cocaine base in violation of 21 U.S.C. 
s 846(b);  conspiracy to use and carry firearms during and in 
relation to drug trafficking offenses in violation of 18 U.S.C. 
s 924(c);  and use of juveniles in drug trafficking in violation 
of 21 U.S.C. s 861.  On October 18, 1989 he was sentenced to 
life without parole plus twenty years, and ten years' super-
vised release.  He was also ordered to pay a special assess-
ment fee of $1,050.  Palmer subsequently appealed his convic-
tion, which this court affirmed in United States v. Harris, 959 
F.2d 246 (D.C. Cir.), cert. denied, 506 U.S. 933 (1992).

     On September 15, 1995 Palmer filed pro se his first post-
conviction motion.  It was entitled "Motion for New Trial 
Newly Discovered Evidence" and sought a new trial "pursu-
ant to Federal Rules of Criminal Procedure, Rule 33, and 
USCA title 18."  (Rule 33 Motion).  Palmer alleged that he 
was "critically prejudiced" by the introduction into evidence 
of photographs of himself and Raymond Morant brandishing 
firearms, which photographs led the jury, wrongly according 
to Palmer, to believe that the firearms belonged to him.  See 
Rule 33 Motion at 1.  Attached to the Rule 33 Motion was an 
affidavit signed by Raymond Morant asserting that, while 
Palmer was present when Morant purchased four guns in 
Pennsylvania, it was Morant, not Palmer, who made the 
purchase and owned the guns.  Id., Exh. A.  Acknowledging 
that the Rule 33 Motion was untimely, Palmer asserted the 
delay resulted from "[e]xcusable [n]eglect."  Id. at 1.  On 
December 5, 1995 the district court summarily denied the 
Rule 33 Motion.  See December 5, 1996 Order.1  Palmer 
appealed and the government, in opposition, argued that the 
district court had properly denied the motion as "untimely."  
Gov't Br. in United States v. Palmer, No. 95-3204 (1995) at 
8-9.  The government further asserted that even if the 

__________
     1 The order stated:  "Upon consideration of defendant's motion 
for documents and for new trial, good cause not having been shown, 
and the record herein;  it is ... ORDERED that defendant's 
petitions be and they are hereby denied."  December 5, 1996 Order.

district court had considered the motion on the merits, it 
would have rejected the motion.  Id. at 10.  In an unpub-
lished opinion, we affirmed the district court.  See United 
States v. Palmer, 97 F.3d 593 (D.C. Cir. 1996).  We initially 
noted that, "[a]lthough Palmer's motion for a new trial based 
on newly discovered evidence is untimely under Federal Rule 
of Criminal Procedure 33, his request for a new trial can be 
treated as a motion to vacate, set aside, or correct sentence 
pursuant to 28 U.S.C. s 2255."  Id.  Assessing the merits, we 
stated that "[t]he evidence Palmer relies on for his claim that 
he had no connection to the guns bought by Raymond Morant 
is not newly discovered" because the information included in 
the Morant affidavit "was made available to the defense prior 
to trial and ... Morant, in fact, did discuss his possible 
testimony with Palmer's trial counsel."  Id.  We further 
opined that the "prosecutorial overreaching" and "ineffective 
assistance of trial counsel" claims were "insufficient to entitle 
him to relief under 28 U.S.C. s 2255."  Id.

     On April 22, 1996, two days before the AEDPA became 
effective, a lawyer in the FPD's Office filed a petition entitled 
"Motion to Vacate Conviction Pursuant to 28 U.S.C. s 2255" 
(FPD 2255 Motion), purportedly on Palmer's behalf.  It 
raised a single claim under Bailey v. United States, 516 U.S. 
137 (1995),2 seeking to vacate his conviction on the section 
924(c) count (using/carrying a firearm "during and in rela-
tion" to a "drug trafficking crime").3  The FPD did not, 

__________
     2 In Bailey the United States Supreme Court defined "use" of a 
firearm under 18 U.S.C. s 924(c)(1) to mean that the defendant 
"actively employed the firearm during and in relation to the predi-
cate crime."  Bailey, 516 U.S. at 150.  Thus, a conviction of "using" 
a firearm under section 924(c)(1) "requires more than a showing of 
mere possession."  Id. at 144.

     3 The FPD 2255 Motion also requested leave to supplement with 
supporting points and authorities, necessitated by the "recently 
enacted statute of limitations on the filing of habeas corpus peti-
tions, see Terrorism Prevention Act, Sec. 105, and upon the fact that 
the Federal Public Defender's Office has identified over two-
hundred cases in which relief may he warranted in light of the 

however, contact Palmer before, or even after, filing the 
motion.  Palmer learned of the FPD 2255 Motion only when 
he received a copy of the docket sheet from the district court 
clerk of court in July 1996.  See July 5, 1996 Palmer Motion 
to Dismiss at 1 p 2-4.  At that point, Palmer, again proceed-
ing pro se, moved to dismiss the FPD 2255 Motion declaring 
that "the federal defender's office filed a [section 2255] motion 
regarding a single issue of violation under 18 U.S.C. 924(c), 
without consultation with defendant concerning other issues" 
and thus "has placed defendant with the possibilities of any 
further petition being denied as successive."  Id. at 2 p 5-6.

     While his motion to dismiss was pending, Palmer filed 
another motion pro se, this one entitled "Motion to Amend."  
He explained that he now wanted to "adopt[ ]" the FPD 2255 
Motion.  See April 8, 1997 Motion to Amend at 2.  He further 
requested permission to "[a]mend this action in the bounds of 
justice and equal protection."  Id.  Along with the motion to 
amend, Palmer filed pro se a sixty-seven page motion entitled 
"Motion to Vacate Conviction" pursuant to 28 U.S.C. s 2255.  
He raised ten additional claims involving numerous evidentia-
ry, sentencing and constitutional issues but making no specif-
ic reference to the Bailey claim raised in the FPD 2255 
Motion.  See April 8, 1997 Motion to Vacate Conviction 
(Palmer 2255 Motion).  On June 2, 1997 the district court 
issued an order granting Palmer's motion to dismiss the FPD 
2255 Motion without referring to his subsequent motion to 
amend (Dismissal Order).  The Dismissal Order denied two 
of the claims raised in the Palmer 2255 Motion as "previously 
rejected on direct appeal" and required the government to 
respond to Palmer's remaining claims within twenty days 
from the date of the order.  See June 2, 1997 Dismissal Order 
at 1-2.  Palmer did not seek reconsideration of the Dismissal 
Order nor did he file a notice of appeal.

     As required by the Dismissal Order, the government re-
sponded to Palmer's 2255 Motion on June 12, 1997.  Relying 
on this court's decision in United States v. Palmer, supra, the 

__________
Supreme Court's recent decision in Bailey."  FPD 2255 Motion at 
1.

government argued that this court had "deemed defendant's 
[Rule 33] motion simultaneously as a motion for new trial and 
as a motion to vacate sentence under 28 U.S.C. section 2255."  
Government's Opposition to Defendant's Motion to Vacate, 
Set Aside or Correct Sentence at 3.  The government further 
argued that "[s]ince this is the defendant's second section 
2255 motion[,] it is subject to" the procedural limitations of 
the newly-enacted AEDPA.  Id. at 3-4.  Even if the AEDPA 
was not applicable, the government contended that the Palm-
er 2255 Motion violated the "abuse of the writ doctrine"4 and 
thus was not cognizable in district court.  See id. at 4 (citing 
McClesky v. Zant, 499 U.S. 467 (1991)).

     On June 23, 1997 Palmer filed pro se a reply entitled 
"Response to Government's Opposition to Petitioner's 28 
U.S.C. s 2255," asserting that the Rule 33 Motion was dis-
missed as untimely only and further that his 2255 motion was 
not "successive" because it "supplement[ed]" the FPD 2255 
Motion.  The FPD separately filed a supplement to Palmer's 
pro se reply, adopting Palmer's position that his 2255 motion 
was not a "new submission, but merely an amendment" and 
adding that "Palmer's Motion[ ] to Amend relate[s] back to 
the April 22, 1996 [FPD 2255] Motion filed on his behalf."  
July 22, 1997 Supplemental Reply to Government's Opposi-
tion to Motion to Vacate at 1 p 1.  In a second supplemental 
reply to the government's opposition, the FPD further argued 
that abuse of the writ was inapplicable to Palmer's circum-
stances, noting that the doctrine was designed to address 
cases of "deliberate abandonment of claims or inexcusable 
neglect," neither of which applied to Palmer.  See August 8, 
1997 Second Supplemental Reply to Government's Opposition 
to Motion to Vacate at 1-2.

     Eventually, on October 29, 1998 Palmer, this time through 
the FPD, filed "Defendant's Supplement to and Amendment 
to Motion to Vacate, Set Aside or Correct Sentence," expand-
ing the arguments he raised in the Palmer 2255 Motion as 
well as reasserting the Bailey claim raised in the FPD 2255 

__________
     4 The abuse of the writ doctrine is further explained infra at 17 
note 10.

Motion.  Palmer attached an affidavit in which he declared 
that his only intent in filing the Rule 33 Motion was to "file 
under Rule 33 for a New Trial."  See August 7, 1997 Affidavit 
of Michael Palmer at 1 p 3.  The government's opposition 
repeated its argument that the Palmer 2255 Motion was a 
second or successive one under the AEDPA.  It asked the 
district court to transfer the Palmer 2255 Motion to this 
court to consider whether to certify it for review under 
section 2244.5  See Government's Motion to Transfer Defen-
dant's Motion Pursuant to 28 U.S.C. s 2255 Or, In The 
Alternative, Government's Opposition to Defendant's Motion 
Pursuant to 28 U.S.C. s 2255 at 1.  Alternatively, the govern-
ment argued that the Palmer 2255 Motion should be denied 
on the merits.  Significantly, the government conceded that 
in light of United States v. Anderson, 59 F.3d 1323 (D.C. Cir. 
1995) (en banc) (one underlying drug-trafficking crime cannot 
be predicate for more than one section 924(c) conviction), four 
of Palmer's five section 924(c) convictions should be vacated.  
Moreover, the government also acknowledged that Palmer's 
section 846 conspiracy conviction should be vacated because it 
was a lesser included offense of the continuing criminal 
enterprise conspiracy count.  Id.  On August 20, 1999 Palmer 
filed pro se his reply to the government's opposition.  See 
Palmer's Reply to Government's Response to 2255 Motion.  
In addition to addressing the merits, Palmer again responded 
to the government's successive motion argument by pointing 
out that this court had "[w]ithout implication or notice, ... 
altered [his] Rule 33 Appeal after all briefing schedules had 
been met, by noting in its opinion the change to an appeal of a 
28 U.S.C. s 2255 motion."  He continued that "[t]his misuse 
of discretion created an impasse now creating a possible 
successive motion."  Id. at 2.  Palmer further stated that he 
had filed the Rule 33 Motion "without knowledge of the law" 
and that, at the time, he was also preparing a section 2255 
motion covering all of his claims.  Id.

__________
     5 Section 2244 prohibits the filing of a second or successive habeas 
application absent exceptional circumstances.  See infra at 14 n.12.

     In a one-page order issued on December 30, 1999 the 
district court dismissed the Palmer 2255 Motion, concluding 
that under the AEDPA the motion constituted a "successive 
application for review of his sentence" which "must initially 
be addressed by the United States Court of Appeals for the 
District of Columbia Circuit rather than by this court."  
December 30, 1999 Order at 1.  On March 3, 2000 Palmer 
filed a timely notice of appeal.6  Subsequently, he moved to 
hold the appeal in abeyance pending the issuance of a certifi-
cate of appealability (COA) by the district court.  After we 
sua sponte remanded the case for consideration of the COA 
question, the district court issued an order on April 9, 2001 
granting the application for a certificate because "a reason-
able jurist could disagree with this court's holding that the 
AEDPA applied to Mr. Palmer's s 2255 motion and that the 
motion was a 'successive application for review of his sentence 
brought pursuant to 28 U.S.C. s 2255.' "  April 9, 2001 Order 
Granting Defendant Palmer's Motion for a Certificate of 
Appealability at 2.  In addition, the court concluded that the 
"defendant has stated at least one claim that a reasonable 
jurist could construe as a valid claim of the denial of a 
constitutional right."  Id.

                               II.

     Our review of the district court's dismissal of Palmer's 
section 2255 motion is de novo.  See United States v. Lanier, 
220 F.3d 833, 837 (7th Cir.), cert. denied, 121 S. Ct. 312 
(2000);  Moore v. United States, 173 F.3d 1131, 1133 (8th Cir. 
1999).

     Palmer's challenge to the district court's dismissal of the 
Palmer 2255 Motion rests on two grounds:  first, he contends 
that his section 2255 motion, filed pro se on April 8, 1997, 
simply amended the FPD 2255 Motion, which was filed 
before the enactment of the AEDPA and therefore is not a 
successive motion under the AEDPA.  Second, Palmer ar-

__________
     6 On May 9, 2002 we granted the FPD's petition for appointment 
to represent Palmer, finding that the "interests of justice warrant 
appointment of counsel."  April 6, 2000 Order (per curiam).

gues that even if the AEDPA does apply, the Palmer 2255 
Motion is not a second or successive motion because this 
court sua sponte recharacterized his untimely Rule 33 Motion 
as a section 2255 motion without notice to him.

     A.   Applicability of AEDPA
          
     Palmer asserts that the FPD filed the FPD 2255 Motion on 
his behalf on April 22, 1996, before the AEDPA's effective 
date, and therefore it is not subject to the AEDPA's "succes-
sive" motion restriction.  In Lindh v. Murphy, 521 U.S. 320 
(1997), the United States Supreme Court determined that the 
AEDPA amendments to section 2255 apply only to cases filed 
after the statute's April 24, 1996 enactment date.  Id. at 326-
27.7  In Lindh, however, the Court did not address whether 
the AEDPA applies to a section 2255 motion filed prior to, 
but amended after, the effective date of the AEDPA.  Rule 
12 of the Rules Governing Section 2255 Proceedings For the 
United States District Courts provides that "[i]f no procedure 
is specifically prescribed by these rules, the district court may 
proceed in any lawful manner not inconsistent with these 
rules, or any statute, and may apply the Federal Rules of 
Criminal Procedure or the Federal Rules of Civil Procedure, 
whichever it deems most appropriate, to petitions filed under 
these rules."  Rules Governing Section 2255 Proceedings For 
the United States District Courts, Rule 12.  Because the 
Section 2255 Rules do not address whether an amended 
petition relates back to the original filing date, courts have 
applied Rule 15 of the Federal Rules of Civil Procedure, 
which governs amended and supplemental pleadings, to 

__________
     7 The Court in Lindh found evidence of congressional intent from 
the fact that section 107, which creates an entirely new chapter 154 
with special rules for habeas proceedings in state capital cases, 
provides that "Chapter 154 ... shall apply to cases pending on or 
after the date of enactment of this Act."  110 Stat. 1226.  The 
Court concluded that section 107(c)'s applicability to all cases pend-
ing at enactment indicates by implication that the AEDPA amend-
ments to chapter 153 of Title 28 (which includes section 2255) "were 
assumed and meant to apply to the general run of habeas cases only 
when those cases had been filed after the date of the Act."  Lindh, 
521 U.S. at 327.

amended section 2255 motions.  See, e.g., United States v. 
Pittman, 209 F.3d 314, 316-17 (4th Cir. 2000) (applying Rule 
15 to decide whether post-AEDPA amendments "relate back" 
to timely section 2255 motion).  We need not reach, however, 
the question whether Palmer's amended section 2255 motion 
relates back to the pre-AEDPA FPD 2255 Motion under 
Rule 15.8  The question we do consider is whether the FPD 

__________
     8 Palmer claims that because he moved to amend the FPD 2255 
Motion, filed pre-AEDPA, that motion is not governed by AEDPA's 
successive bar rule. This argument assumes, however, that Rule 15 
allows an amendment like this to relate back to the FPD 2255 
Motion.  In a similar context, a number of circuit courts have held 
that an untimely amendment to a section 2255 motion (i.e., one filed 
after AEPDA's one-year statute of limitations) that clarifies or 
amplifies a claim or theory in the original motion may, in the 
district court's discretion, relate back to the original motion if the 
original motion was timely filed and the proposed amendment does 
not seek to add a new claim or to press a new theory.  See, e.g., 
Pittman, 209 F.3d at 317;  United States v. Thomas, 221 F.3d 430, 
433-34 (3d Cir. 2000);  United States v. Duffus, 174 F.3d 333, 337 
(3d Cir.), cert. denied, 528 U.S. 866 (1999).  Whether an amendment 
to a section 2255 motion relates back to avoid the AEDPA's one-
year statute of limitations is analogous to whether the Palmer 2255 
Motion relates back to the FPD 2255 Motion.  Both are procedural 
bars triggered by time limitations.

 The circuit courts that have addressed the "relation back" issue 
have found that an untimely section 2255 claim can relate back 
under Rule 15(c) if the untimely claim has more in common with the 
timely filed claim than the mere fact that they arose out of the same 
trial and sentencing proceedings.  Compare Pruitt v. United States, 
274 F.3d 1315, 1319 (11th Cir. 2001);  Pittman, 209 F.3d at 317-18;  
Duffus, 174 F.3d at 335;  with Williams v. Vaughn, 3 F. Supp. 2d 
567, 570 (E.D. Pa. 1998) ("both motions allege constitutional defects 
surrounding the same 'occurrence'--motioner's trial and penalty 
phases").  The untimely claim must arise from the "same set of 
facts" as the timely filed claim, not from separate conduct or a 
separate occurrence in "both time and type."  Pittman, 209 F.3d at 
318 (internal quote omitted).  In Pittman the Fourth Circuit found 
that the amended claims of ineffective assistance arose out of 
different conduct and transactions from those addressed in Pitt-
man's first motion that challenged the district court's jurisdiction 

2255 Motion was included in the Dismissal Order, leaving the 
Palmer 2255 Motion, as amended by the FPD's October 29, 
1998 submission, as the sole motion before us.

     The government argues that the Dismissal Order dis-
missed the FPD 2255 Motion, just as Palmer's motion to 
dismiss sought.  Palmer nonetheless contends that his April 
8, 1997 motion to amend manifested his intent to abandon his 
then-pending motion to dismiss and therefore the dismissal of 
the FPD 2255 Motion was a "ministerial mistake."  Palmer 
Br. at 9.  To be sure, his motion to amend, filed simulta-
neously with his 2255 motion, noted that "[a]s of the date of 
this motion, no decision has been made either on the [FPD's] 
2255 action nor petitioner motion to withdraw[,] [t]herefore, 
petitioner now (adopts) the Federal Public Defender motion 
and requests permission of this Court to Amend this action in 
the bounds of justice and equal protection."  Motion to 
Amend 1-2.  Palmer's apparent desire to withdraw his mo-
tion to dismiss the FPD 2255 Motion and instead to "adopt" 
and amend it was thwarted.  Irrespective of his motion to 
amend, the Dismissal Order unmistakably directed that 
Palmer's "motion to dismiss the April 22, 1996 motion to 
vacate conviction filed by the Federal Public Defender be and 
it is hereby GRANTED."  Dismissal Order at 2.  There is no 
other way to read the Dismissal Order.

     To the extent that Palmer now contends that the district 
court's decision to dismiss rather than amend the pre-
AEDPA motion was "mistaken," the time to challenge that 
aspect of the Dismissal Order is long past.  A motion to alter 
or amend a judgment must be filed no later than 10 days 
after entry of the judgment.  See Fed. R. Civ. Pro. 59(e).  In 
addition, a federal prisoner appealing the dismissal of a 
section 2255 petition must file the notice of appeal within 60 
days of final judgment although the district court may, upon a 
showing of good cause, extend the period an additional 30 

__________
and the imposition of an enhanced sentence.  See Pittman, 209 F.3d 
at 318.  Although we do not reach the issue here, it appears that 
most of the claims raised in the Palmer 2255 Motion would likely 
fail the same conduct/occurrence test vis-a-vis the FPD 2255 Mo-
tion, which raised a Bailey claim.

days.  See Rules Governing Section 2255 Proceedings For the 
United States District Courts, Rule 11 ("time for appeal from 
an order entered on a motion for [section 2255] relief ... is as 
provided in Rule 4(a) of the Federal Rules of Appellate 
Procedure");  Fed. R. App. P. 4(a)(1) (in civil case where 
United States is party, notice of appeal must be filed within 
sixty days after date of entry of final judgment).  The speci-
fied period is "mandatory and jurisdictional."  Browder v. 
Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quot-
ing United States v. Robinson, 361 U.S. 220, 229 (1960)).  It 
applies to a pro se section 2255 motion as well.  See Kapsalis 
v. Wilson, 380 F.3d 365, 366 (9th Cir.) (rejecting pro se 
petitioner's appeal as untimely), cert. denied, 389 U.S. 878 
(1967).  Were we to conclude that Palmer by his motion to 
amend intended to withdraw his previously filed motion to 
dismiss and instead to adopt the FPD 2255 Motion, that 
motion was dismissed.9  Palmer failed to move the court to 
reconsider the ruling, to appeal the dismissal or to challenge 
the district court's failure to rule on his outstanding motion to 
amend.  By failing to file a notice of appeal, Palmer has 
waived his right to now argue that the dismissal was "mistak-
en."  Because the FPD 2255 Motion filed before the 
AEDPA's effective date was unquestionably dismissed and 
that dismissal was not challenged, the remaining Palmer 2255 
Motion was filed post-AEDPA enactment and the AEDPA's 
"successive" motion bar applies.

     B.   Successive Motion Procedural Bar
          
     In 1995 Palmer filed a Rule 33 motion for new trial based 
on what he claimed was newly discovered evidence.  Because 

__________
     9 One basis for the district court's decision could be that the FPD 
2255 Motion was filed without Palmer's consent and thus the court 
might have thought it invalid.  Another could be that Palmer's 
motion to dismiss the FPD 2255 Motion was self-executing under 
Fed. R. Civ. P. 41(a)(1) ("[A]n action may be dismissed by the 
plaintiff without order of court (i) by filing a notice of dismissal at 
any time before service by the adverse party of an answer or a 
motion for summary judgment" (emphasis added)).  The govern-
ment had not responded to the FPD Motion when Palmer filed his 
notice of dismissal.

the motion was filed nearly six years after the jury found him 
guilty, the motion was untimely.  See Fed. R. Crim. P. 33 ("A 
motion for a new trial based on newly discovered evidence 
may be made only within three years after the verdict or 
finding of guilty.").  Finding no "good cause," the district 
court denied the Rule 33 Motion.  Palmer appealed.  In an 
unpublished opinion we affirmed the district court.  See Unit-
ed States v. Palmer, supra.  Notwithstanding its tardiness, 
we found "[Palmer's] request for a new trial can be treated as 
a motion to vacate, set aside, or correct sentence pursuant to 
28 U.S.C. s 2255."  Id. (emphasis added).  Treating it thus, 
we concluded that Palmer's claims of ineffective assistance 
and prosecutorial misconduct were "insufficient to entitle him 
to relief under 28 U.S.C. s 2255."  Id.

     This court's recharacterization of the Rule 33 Motion fol-
lows the well-established practice of construing a pro se 
party's pleadings liberally.  See Haines v. Kerner, 404 U.S. 
519, 520 (1972) (per curiam) (allegations of pro se motioner, 
"however inartfully pleaded," are subject to "less stringent 
standards than formal pleadings drafted by lawyers");  see, 
e.g., United States v. Cooper, 725 F.2d 756, 757 n.1 (D.C. Cir. 
1984) (per curiam) (disregarding untimeliness of prisoner's 
third s 2255 motion because first two motions were pro se).  
Before the AEDPA and in accordance with this practice, 
"district courts routinely converted post-conviction motions of 
prisoners who unsuccessfully sought relief under some other 
provision of law into motions made under 28 U.S.C. s 2255 
and proceeded to determine whether the prisoner was enti-
tled to relief under that statute."  Adams v. United States, 
155 F.3d 582, 583 (2d Cir. 1998) (per curiam);  see, e.g., United 
States v. Tindle, 522 F.2d 689, 692-93 (D.C. Cir.1975) (per 
curiam) (affirming district court's treatment of untimely mo-
tion for new trial alleging ineffective assistance as s 2255 
motion).

     The AEDPA significantly changed the landscape.  The 
final paragraph of section 2255 and section 2244(b) of Title 28, 
both included in the AEDPA, replace the abuse-of-the-writ 

doctrine10 with statutory requirements that bar second or 
successive section 2255 motions absent exceptional circum-
stances and certification by an appellate court.11  Recognizing 
this change, the Second Circuit observed:
__________
     10 Pre-AEDPA, if a defendant filed a second section 2255 petition, 
the government could defend on "abuse of the writ," whereupon the 
defendant had to show cause for failing to raise the claim earlier, 
i.e., "some objective factor external to the defense [that] impeded 
counsel's efforts," as well as demonstrate "actual prejudice resulting 
from the errors of which he complains."  McCleskey v. Zant, 499 
U.S. 467, 493-94 (1991) (quotations omitted).  Were we to conclude 
that the Palmer 2255 Motion was governed by pre-AEDPA law, we 
would nonetheless have to resolve whether our treatment of the 
Rule 33 Motion as a section 2255 motion required him to satisfy the 
"cause and prejudice" standard before we could consider his current 
2255 motion.  See United States v. Ortiz, 136 F.3d 161, 163-64 (D.C. 
Cir. 1998) (applying AEDPA to petitioner who filed first petition to 
vacate before AEDPA but second motion after AEDPA not imper-
missibly retroactive because he would not have prevailed under 
McCleskey "cause and prejudice" standard).

     11 Section 2255 provides:
          A second or successive motion must be certified as provided 
     in section 2244 by a panel of the appropriate court of appeals to 
     contain--
          (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 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. s 2255.  Section 2244 provides for the certificate of 
appealability (COA) as follows:
          (b)(2) A claim presented in a second or successive habeas 
     corpus application under section 2254 that was not presented in 
     a prior application shall be dismissed unless--
               (A) an applicant shows that the claim relies on a new rule 
          of constitutional law, made retroactive to cases on collateral 
          review by the Supreme Court, that was previously unavail-
          able;  or

     If a district court receiving a motion under some other 
     provision of law elects to treat it as a motion under 
     s 2255 and then denies it, that may cause the movant's 
     subsequent filing of a motion under s 2255 to be barred 
     as a "second" s 2255.  Thus a conversion, initially justi-
     fied because it harmlessly assisted the prisoner-movant 
     in dealing with legal technicalities, may result in a disas-
     trous deprivation of a future opportunity to have a well-
     justified grievance adjudicated.  The court's act of con-
     version which we approved under pre-AEDPA law be-
     cause it was useful and harmless might, under AEDPA's 
     new law, become extraordinarily harmful to a prisoner's 
     rights.  A prisoner convicted pursuant to unconstitution-
     al proceedings might lose the right to have a single 
     motion for habeas corpus adjudicated, solely by reason of 
     a district court's having incorrectly recharacterized some 
     prior motion as one brought under s 2255.
     
Adams, 155 F.3d at 583-84 (footnote omitted).

     To minimize the risk, the Second Circuit imposed a protocol 
for district courts to use in deciding whether to convert a 
post-conviction motion made under a different provision into a 
section 2255 motion, declaring:

     [D]istrict courts should not recharacterize a motion pur-
     portedly made under some other rule as a motion made 
     under s 2255 unless (a) the movant, with knowledge of 
_________
           (B)(i) the factual predicate for the claim could not have 
          been discovered previously through the exercise of due dili-
          gence;  and
          
           (ii) the facts underlying the claim, if proven and viewed in 
          light of the evidence as a whole, would be sufficient to 
          establish by clear and convincing evidence that, but for 
          constitutional error, no reasonable factfinder would have 
          found the movant guilty of the offense.
          
          (3)(A) Before a second or successive application permitted by 
     this section is filed in the district court, the applicant shall 
     move in the appropriate court of appeals for an order authoriz-
     ing the district court to consider the application.
     
28 U.S.C. s 2244(b)(2)-(3)(A).

     the potential adverse consequences of such recharacteri-
     zation, agrees to have the motion so recharacterized, or 
     (b) the court finds that, notwithstanding its designation, 
     the motion should be considered as made under s 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.
     
Adams, 155 F.3d at 584;  see also United States v. Emmanu-
el, 288 F.3d 644, 649 (4th Cir. 2002) (adopting informed 
consent/notice approach similar to Adams);  United States v. 
Seesing, 234 F.3d 456, 464 (9th Cir. 2001) (same);  United 
States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000) (same);  
United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999) 
(adopting expanded Adams notice approach).  While acknowl-
edging the fairness concerns raised by Adams and others, the 
First and Seventh Circuits have adopted a slightly different 
"ameliorative" approach.12  Reluctant to eliminate the rechar-
acterization practice and concerned about imposing additional 
burdens on already "overburdened district courts," the First 
Circuit 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 motion without notice and 
an opportunity to be heard (or in the alternative, the plead-
er's informed consent), the recharacterized motion ordinarily 
will not count as a 'first' habeas motion sufficient to trigger 

__________
     12 Until very recently, the Fifth Circuit's decision in In re Tolliv-
er, 97 F.3d 89 (5th Cir. 1996), was the only authority to the 
contrary.  There, Tolliver, in an untitled filing, moved to dismiss his 
conviction for using or carrying a firearm in relation to a drug 
crime in violation of 18 U.S.C. s 924(c) based on Bailey v. United 
States, 516 U.S. 137 (1995), which the district court sua sponte and 
over Tolliver's objection construed as a section 2255 motion.  The 
court denied Tolliver's successive section 2255 motion and thus 
upheld the district court's recharacterization, stating that "[w]hile 
Tolliver objected to the district court's construing it as a s 2255 
motion, there is nothing else it could be."  Tolliver, 97 F.3d at 90.  
In light of the overwhelming weight of authority since Tolliver as 
well as the persuasive rationale of that authority, we decline to 
follow Tolliver.

AEDPA's gatekeeping requirements."  Raineri v. United 
States, 233 F.3d 96, 100 (1st Cir. 2000);  see also Henderson v. 
United States, 264 F.3d 709, 711 (7th Cir. 2001) ("we won't 
deem a Rule 33 (or other mislabeled motion) a section 2255 
motion unless the movant has been warned about the conse-
quences of his mistake");  United States v. Lemon, 2001 WL 
1628651, *3 (D. Minn. 2001) (adopting Raineri approach).  
Without citing specific examples, the First Circuit found that 
"there are times, even after AEDPA, when recharacterization 
will be to a pro se litigant's benefit, or in the interests of 
justice, or otherwise plainly warranted."  233 F.3d at 100.  
The court was concerned that the Adams "protocol" approach 
would "los[e] the baby along with the bath water" in discour-
aging district courts from using a sometimes useful practice 
by "forcing them to jump through extra hoops."  Id.  Be-
cause we conclude that the "protocol" approach will not 
unnecessarily burden the court, nor prevent it from using 
recharacterization where beneficial (assuming it is done with 
the movant's knowledge and consent), we conclude that the 
court may recharacterize a post-conviction motion made un-
der another rule or law as a section 2255 motion only if it first 
ensures that the movant is fully informed of section 2255's 
restriction on second or successive 2255 motions as well as 
other procedural hurdles implicated by recharacterization and 
the court offers the movant an opportunity to withdraw his 
motion.13  We endorse the Fourth Circuit's instruction that 
"[t]he notice to the movant shall set a reasonable period of 
time for the prisoner to respond to the court's proposed 
recharacterization and shall advise the prisoner that failure to 
respond within the time set by the court will result in the 
original petition being recharacterized as a s 2255 petition."  
Emmanuel, 288 F.3d at 649.  Thus, where, as here, a mov-
ant's post-conviction filing has been recharacterized without 
using the protocol, the recharacterized motion will ordinarily 
not function as a first petition for the purpose of determining 
whether the section 2255 motion under review is a second or 
successive one.

__________
     13 One example of such a hurdle is the AEDPA one-year statute 
of limitations period.  See 18 U.S.C. s 2255 p 6.

     Recently, the Eleventh Circuit, which originally followed 
the First Circuit's "ameliorative" approach,14 vacated its earli-
er opinion and replaced it with one reaching the opposite 
result.  See Castro v. United States, 290 F.3d 1270 (11th Cir. 
May 7, 2002) (Castro II).  As Palmer did here, Castro filed 
pro se a pre-AEDPA motion for a new trial based upon newly 
discovered evidence, which the district court treated as both a 
Rule 33 motion and a section 2255 motion.  Reversing course, 
the Eleventh Circuit took issue with Raineri, stating that to 
"relieve an entire class of motioners from any restriction at 
all on the filing of a second motion simply because their first 
motions had been recharacterized ... might undermine the 
congressional purpose behind the AEDPA, which is to limit 
successive s 2255 motions."  Id. at 1274.  The Castro II 
majority, while dismissing Castro's motion as successive, then 
noted that "in future cases where the motioner is not filing a 
second motion, 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 s 2255 motion, we 
would agree with a clear majority of the circuits that the 
district courts should warn prisoners of the consequences of 
recharacterization and provide them with the opportunity to 
amend or dismiss their filings."  Id. (emphasis added).  The 
reason for this distinction eludes us.15  How would a petition-
er like Palmer, unaware of the consequences of a court's sua 
sponte recharacterization, know either to withdraw his motion 
or to amend it to include additional claims?16

__________
     14 See Castro v. United States, 277 F.3d 1300, 1305 (11th Cir. 
January 2, 2002) ("district court's recharacterization of a petitioner's 
initial post-conviction petition will not be considered a 'first' habeas 
petition for AEDPA purposes unless the petitioner is given notice of 
the consequences of such recharacterization").

     15 The dissent in Castro II noted that "[w]e have found no case in 
which a pre-AEDPA petition that was 'converted' by the court and 
then denied barred a second post-AEDPA s 2255 petition."  Castro 
II, 2002 WL 864219, *5 (Roney, J., dissenting).

     16 Moreover, Castro II's homage to congressional intent seems, to 
us, ill-founded.  Nothing in the AEDPA indicates that a post-
conviction motion not styled as a section 2255 motion must be 

     The government, acknowledging the weight of authority 
against it, argues that Palmer knew that our recharacteriza-
tion of the Rule 33 Motion could limit his future options.  
Palmer's failure to challenge the recharacterization in his 
petition for rehearing en banc, according to the government, 
stands in contrast to his July 1, 1996 motion to dismiss the 
FPD 2255 Motion, wherein he stated that "the federal de-
fender's office has placed defendant with possibilities of any 
further motion being denied as successive."  July 5, 1996 
Palmer Motion to Dismiss at 2.  We are not persuaded.  
First, the government, in effect, is arguing that Palmer fully 
understood the pitfalls of the AEDPA's successive bar rule 
even though this court, it appears, did not.  Second, simply 
because Palmer may have realized that the FPD 2255 Motion 
could impair any future section 2255 motion does not mean 
that he was also aware that his Rule 33 motion could be 
changed into a "first" section 2255 motion without his consent 
by an appellate court deciding his appeal of the dismissal of 
the motion as untimely.  In addition, this court stated that 
the Rule 33 Motion "can be" treated as a section 2255 motion, 
not that it was formally so recharacterized, making the 
likelihood that Palmer fully understood the consequences of 
the ruling even more remote.  See Palmer, 97 F.3d at 593.

     The government also argues that the Rule 33 Motion was 
not a bona fide motion for a new trial because it raised both 
constitutional claims and ineffective assistance and prosecuto-
rial misconduct claims.  See Gov't Brief at 21.  This argument 
contradicts the government's original stance.  In opposing 
Palmer's appeal of the district court's dismissal of the Rule 33 
Motion, the government focused on the motion's untimeliness 
and on the fact that it did not present "newly discovered" 

__________
deemed one simply because it could be so styled.  Indeed, the 
AEDPA does not define a "second or successive" motion at all.  But 
not every post-conviction motion is properly considered a "second or 
successive" filing in the AEDPA sense.  See, e.g., Stewart v. 
Martinez-Villareal, 523 U.S. 637, 644-45 (1998) (movant's claim 
that he was incompetent to be executed, raised for the second time 
after his first claim was dismissed as premature, not "second or 
successive" motion under AEDPA).

evidence, treating Palmer's alleged constitutional/statutory 
claims in a footnote.  See May 29, 1996 Government Brief in 
appeal of denial of Motion for New Trial at 8-12 & n.8.  In 
particular, the government's brief stated that an ineffective 
assistance claim "was not raised in [Palmer]'s new trial 
motion and is therefore not properly before this court."  Id.

     Moreover, the circumstances here are easily distinguishable 
from those presented in United States v. Evans, 224 F.3d 670, 
673 (7th Cir. 2000), the only case the government cites for its 
"bona-fide" inquiry.17  In Evans, the prisoner, having already 
filed a twelve-issue s 2255 motion that the court rejected, 
attempted to avoid the successive motion bar by designating 
his new motion as a new trial motion.  Id.  In that motion, 
his "new evidence" was that the prosecution had failed to 
disclose evidence in violation of due process.  The court held 
that a "defendant whose argument is not that newly discover-
ed evidence supports a claim of innocence, but instead that he 
has new evidence of a constitutional violation or other ground 
of collateral attack is making a motion under s 2255 (or 
s 2254) no matter what caption he puts on the document."  
Id. at 674.  Distinguishing Evans's new trial motion, the court 

__________
     17 We note that only the Seventh Circuit inquires into the legiti-
macy of a Rule 33 motion recharacterized as a section 2255 motion.  
In this regard, the Seventh Circuit itself appears split.  In 
Henderson, it conducted no inquiry into whether the Rule 33 motion 
was bona fide, stating that "[n]othing in the AEDPA says that a 
motion not labeled as a section 2255 motion shall nevertheless be 
deemed one if it could have been so labeled accurately.  This is a 
purely judge-made rule, and so its contours are up to the judges to 
draw.  All we hold today ... is that 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 this mistake."  
Henderson v. United States, 264 F.3d at 711.  One month before its 
Henderson decision, however, the court did look into whether the 
Rule 33 motion was "in substance" within the scope of section 2255 
and thus appropriately recharacterized.  See Ruth v. United States, 
266 F.3d 658, 660-61 (7th Cir. 2001) (concluding that Rule 33 motion 
was bona fide and thus was not properly recharacterized as s 2255 
motion).

stated that "a bona fide motion for a new trial on the basis of 
newly discovered evidence falls outside s 2255 p 1 because it 
does not contend that the conviction or sentence violates the 
Constitution or any statute."  Id. at 673-74.  The focus of 
Palmer's new trial motion, in contrast, was the "new evi-
dence" that he did not own the guns that were alleged to be 
his at trial.  References to ineffective assistance and prosecu-
torial misconduct were, at most, Palmer's attempts to demon-
strate prejudice from the failure to present that evidence at 
trial.  Moreover, because Palmer's new trial motion predated 
the AEDPA, he did not file the Rule 33 Motion to avoid 
AEDPA's procedural restrictions, as the movants in Evans 
and Tolliver did.18  Finally, the inquiry is unnecessary in light 
of the court's adoption of the protocol approach;  Palmer was 
not a beneficiary of the protocol and therefore, whether his 
Rule 33 Motion was bona fide or not, our recharacterization 
of it does not convert it into Palmer's first section 2255 
motion.

     In sum, having denominated his filing a motion for new 
trial based on newly discovered evidence under Rule 33, 
Palmer was entitled to have his motion decided under that 
rule.  We could have affirmed its denial as either untimely or 
meritless.  Because Palmer was not given notice of the 
potential adverse consequences flowing from this court's con-
struction of his motion as a section 2255 motion, we reverse 

__________
     18 The Evans holding includes a relevant caveat:  "One caveat is 
in order.  Our case is easy because Evans filed a motion explicitly 
under s 2255, then tried to evade the limitations on successive 
motions by placing a Rule 33 caption on his next collateral at-
tack....  When a prisoner who has yet to file a petition under 
s 2255 invokes Rule 33 but presents issues substantively within 
s 2255 p 1, the district court should alert the movant that this can 
preclude any later collateral proceedings and asks whether the 
prisoner wishes to withdraw the claim....  We postpone, until the 
occasion requires, deciding what should happen if a district judge 
fails to deliver that advice, denies the Rule 33 petition on the 
merits, and the prisoner then files what would otherwise be a timely 
s 2255 motion."  Evans, 224 F.3d at 674-75;  see also Palmer Reply 
Br. at 10-11.

the district court's order requiring Palmer to request a 
certificate of appealability pursuant to the AEDPA and re-
mand for further proceedings consistent with this opinion.

                                                                 So ordered.

                                                