     Case: 09-50923         Document: 00511124092               Page: 1      Date Filed: 05/27/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit
                            ____________          FILED
                                                                                         May 27, 2010
                                           No. 09-50923
                                         Summary Calendar                               Lyle W. Cayce
                                           ____________                                      Clerk

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee

v.

DANA JOHN ALEXANDER,

                                                         Defendant-Appellant
                                    _________________________

                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC No. 6:09-CV-227
                                USDC No. 6:06-CR-62-1
                               _________________________


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Dana John Alexander, federal prisoner # 56715-180, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
motion as an unauthorized successive motion.
        A COA may be granted only if the movant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). When the



        *
         Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR . R. 47.5.4.
   Case: 09-50923    Document: 00511124092        Page: 2   Date Filed: 05/27/2010



                                   No. 09-50923

district court denies relief on procedural grounds and does not reach the
underlying constitutional claims, “a COA should issue ...[if] the prisoner shows,
at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Although the district court informed Alexander of its recharacterization
of a pleading as a § 2255 motion, it did not inform him of the consequences of
such recharacterization on subsequent § 2255 motions or provide him with an
opportunity to withdraw or amend this motion to include all possible claims.
Thus, the recharacterized prior motion does not constitute an initial § 2255
motion that would preclude the filing of another motion as successive. See
Castro v. United States, 540 U.S. 375, 383-84 (2003).
      Accordingly, we GRANT Alexander’s motion to proceed in forma pauperis
on appeal, GRANT Alexander a COA on the issue whether the district court
erred in denying his § 2255 motion as successive, VACATE the district court’s
denial of § 2255 relief, and REMAND to the district court for further
consideration. See Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).
