      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                     For the First Circuit


No. 01-1334

                        ALEJANDRO VEGA,

                     Petitioner, Appellant,

                               v.

                         UNITED STATES,

                     Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                       Boudin, Chief Judge,
              Torruella and Lipez, Circuit Judges.



     Alejandro Vega on brief pro se.
     James B. Farmer, United States Attorney, and Dina Michael
Chaitowitz, Assistant U.S. Attorney, on brief for appellee.



                        January 3, 2002
            Per Curiam. Petitioner Alejandro Vega appeals from

a district court judgment dismissing his 28 U.S.C. § 2255

petition as a "second or successive" one under AEDPA.               See

28 U.S.C. § 2255 (¶ 8) (requiring that second or successive

petition by certified by appellate court as satisfying one

of two gatekeeping criteria).         According to petitioner, his

"first" petition was in fact a motion for reduction of

sentence under 18 U.S.C. § 3582(c) which the district court,

acting without his consent, had recharacterized as a § 2255

petition.    If so, that filing would likely "not count as a

'first'   habeas       petition   sufficient   to     trigger   AEDPA's

gatekeeping requirements."          Raineri v. United States, 233

F.3d 96, 100 (1st Cir. 2000).

            As   the     district    court   found,    however,   this

assertion is factually mistaken.          The record reveals that a

§ 3582(c) motion was filed on May 16, 1997 and was denied in

a margin order dated June 3, 1997.           Petitioner then filed a

separate pleading on November 24, 1997 which was formally

styled as a § 2255 petition and was treated as such.                The

court disposed of that matter in an order dated February 17,

1998.     The existence of this earlier § 2255 proceeding

renders the instant petition second or successive.

         The judgment is affirmed. Alternatively, to the
extent the notice of appeal can be construed as a request

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for leave to file a second or successive petition, that
request is denied without prejudice for the reasons stated
in the first paragraph of this court's November 20, 2000
judgment.




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