           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                       No. 05-10120
                                                                               F I L E D
                                                                              September 11, 2007

                                                                           Charles R. Fulbruge III
                                                                                   Clerk
DONNA SUE MCDANIEL, also known as
Donna Cooksey, also known as Donna Sue Hanson

                                                  Plaintiff - Appellant

v.

UNITED STATES OF AMERICA

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 4:95-CR-148-3-C


Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
       In June 1996, Donna Sue McDaniel pled guilty to possession with intent
to distribute methamphetamine. McDaniel’s plea spared her prosecution on
other, related drug charges but resulted in the imposition of a 360-month term
of imprisonment and a five-year term of supervised release. McDaniel appealed
through her counsel. While this appeal was pending, McDaniel filed a pro se


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 05-10120

“Motion to Withdraw Plea of Guilty [and] Motion to Object to Sentence Imposed”
in which she argued that she had received ineffective assistance of counsel. The
district court recharacterized McDaniel’s motion as a 28 U.S.C. § 2255 motion
and denied it in December 1996. The denial of this motion was not appealed.
McDaniel’s direct appeal was rejected by this Court in June 1997. The Supreme
Court rejected McDaniel’s petition for writ of certiorari on November 17, 1997.
      McDaniel filed a petition under § 2255 on November 16, 1998. The district
court denied McDaniel’s petition as successive based on the 1996 motion referred
to above.   This Court then denied two motions for authorization to file a
successive petition. In 2004, McDaniel filed the instant § 2255 petition that is
the subject of this appeal. The district court denied this petition as successive.
McDaniel requested and was granted a certificate of appealability authorizing
her to appeal from the district court’s denial of her petition.
      In this appeal, McDaniel argues that the district court erred in its
recharacterization of her initial 1996 motion as a § 2255 petition, citing Castro
v. United States, 540 U.S. 375 (2003).         Castro requires a district court
recharacterizing a pro se motion as a § 2255 petition to “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.” Id. at 383. Failure by the district court to comply
with these limitations precludes it from treating the motion before it as a § 2255
petition for purposes of applying the “second or successive” petition restrictions.
Id.
      The government concedes that, with respect to the 1996 motion, McDaniel
did not receive the protection owed her under Castro. Accordingly, McDaniel’s
1996 motion was not properly construed as a § 2255 petition and her 1998 and

                                         2
                                  No. 05-10120

2004 petitions should not have been dismissed as successive. Since the dismissal
of the 1998 petition was for an improper reason, it cannot be used to characterize
the 2004 petition that is on appeal as successive. The district court’s denial of
McDaniel’s § 2255 petition is VACATED and the case is REMANDED for
reconsideration of McDaniel’s 2004 petition consistent with this opinion.
                                                 VACATED AND REMANDED.




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