                                                                 [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                          FILED
                           FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                   U.S.
                                                                    ELEVENTH CIRCUIT
                             _________________________                  July 19, 2005
                                                                     THOMAS K. KAHN
                                                                          CLERK
                                    No. 02-14997
                             _________________________

                       D.C. Docket No. 98-00268-CR-1-1-TWT

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                           versus

GEORGE TERRELL, JR.

                                                         Defendant-Appellant.


                          _____________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                        _____________________________

                                      (July 19, 2005)

Before ANDERSON and WILSON, Circuit Judges, and JORDAN*, District Judge.

PER CURIAM:

       *
         Honorable Adalberto Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
      George Terrell, Jr. appeals the district court’s denial of his motion to reopen

and reduce sentence. For the reasons which follow, we affirm the denial of relief as

modified.

                        FACTS AND PROCEDURAL HISTORY

      In November of 1998, Mr. Terrell pled guilty to bank robbery. Under the

Sentencing Guidelines, Mr. Terrell had a criminal history category of VI (based on

his prior convictions) and an offense level of 22, which led to a sentencing range of

84-105 months in prison. The district court sentenced him to 84 months in prison.

      Mr. Terrell did not file a direct appeal. Instead, in March of 2000, he filed a

timely motion to vacate under 28 U.S.C. § 2255, alleging ineffective assistance of

counsel. In his motion, Mr. Terrell did not challenge or otherwise attack the prior

convictions that were used in computing his criminal history category.

      In March of 2001, while the motion to vacate was pending before the district

court, Mr. Terrell filed a state habeas corpus petition attacking his prior convictions.

      In an order dated April 24, 2002, the district court denied the motion to vacate.

Mr. Terrell filed a timely notice of appeal on May 8, 2002. We refer to this appeal

as the “§ 2255 appeal.”

      On May 9, 2002, the state court issued an order setting aside eight of Mr.

Terrell’s prior convictions. Had these eight convictions not been used to compute the

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criminal history category, Mr. Terrell’s sentencing range under the Sentencing

Guidelines would have been 46-57 months (based on a criminal history category of

II and an offense level of 22).

       On June 4, 2002, while the § 2255 appeal was pending in this Court, Mr.

Terrell filed a motion to reopen and to reduce sentence in the district court. This

motion was based on the state court’s order, and Mr. Terrell asked the district court

to resentence him based upon his new criminal history category. See generally

United States v. Walker, 198 F.3d 811, 813 (11th Cir. 1999) (under § 2255, a district

court may “reopen and reduce a federal sentence, once a defendant has, in state court,

successfully attacked a prior state conviction previously used in enhancing the federal

sentence”). The district court concluded that Mr. Terrell’s motion to reopen and

reduce sentence was a second or successive motion to vacate under § 2255, and

denied it on August 14, 2002. Mr. Terrell filed a timely notice of appeal.

       On November 21, 2002, this Court dismissed Mr. Terrell’s § 2255 appeal for

failure to timely file the initial brief.

       In this appeal, a panel of this Court issued a certificate of appealability on

October 22, 2003. The certificate was limited to two issues: (1) whether the district

court correctly construed Mr. Terrell’s motion to reopen and reduce sentence as a

motion to vacate under § 2255; and (2) whether the district court erred in dismissing

                                            3
Mr. Terrell’s motion as second or successive.

                                     DISCUSSION

      Our review on appeal is limited to the two issues in the certificate of

appealablity. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998)

(“we hold that in an appeal brought by an unsuccessful habeas petitioner, appellate

review is limited to the issues specified in the COA”). As to those issues, we hold

that Mr. Terrell’s motion to reopen and reduce sentence was a motion to vacate under

§ 2255, and that the district court correctly treated it as a second or successive motion

to vacate.

                                           A

      In Gonzalez v. Crosby, ___ U.S. ___, 2005 WL 1469516, *5 (U.S. June 23,

2005), the Supreme Court held that a Rule 60(b) motion for relief from judgment in

a habeas corpus case brought under 28 U.S.C. § 2254 is properly characterized as a

second or successive petition pursuant to 28 U.S.C. § 2244(b) if, among other things,

it “seeks to add a new ground for relief.” Although Gonzalez addressed a Rule 60(b)

motion and decided the issue only under § 2254, see id. at *3 n.3, we believe that its

holding and rationale apply equally to § 2255, and that it controls the disposition of

this appeal.

      In his motion to reopen and reduce sentence, Mr. Terrell sought to set aside his

                                           4
84-month sentence and obtain a lower sentence based upon the vacatur of some of his

prior state court convictions. Regardless of how Mr. Terrell characterized his motion,

see Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004), the claim he asserted

was a brand new substantive claim for relief on the merits, and one that had not been

presented in his initial § 2255 motion. The district court correctly treated the motion

to reopen and reduce sentence as a § 2255 motion to vacate, see Walker, 198 F.3d at

813, and, under Gonzalez, correctly ruled that it was a second or successive motion

to vacate.

      Mr. Terrell, relying on the Second Circuit’s decision in Ching v. United States,

298 F.3d 174, 175-77 (2d Cir. 2002), argues that his motion to reopen and reduce

sentence should not have been characterized as a second or successive motion to

vacate because his appeal from the initial denial of § 2255 relief was still pending at

the time he filed the motion. According to Mr. Terrrell, his initial § 2255 motion had

not been conclusively denied by this Court, so his motion should have been construed

as a motion to amend the initial § 2255 motion.

      Upon review, we believe Ching is distinguishable. In Ching the district court,

after remand, had before it both the initial § 2255 motion and a subsequent motion.

Under these circumstances, the Second Circuit held that “in general, when a § 2255

motion is filed before adjudication of an initial § 2255 motion is complete, the district

                                           5
court should construe the second § 2255 motion as a motion to amend the pending §

2255 motion.” 298 F.3d at 177. The circumstances here are different. When Mr.

Terrell filed his motion to reopen and reduce sentence, the district court had already

denied the initial § 2255 motion. In other words, there was no pending § 2255 motion

in the district court when Mr. Terrell filed his motion and, hence, there was nothing

to amend. At this time, moreover, the initial § 2255 motion is no longer pending

anywhere, and it would make no sense to remand and direct the district court to treat

the motion to reopen and reduce sentence as a motion to amend an initial § 2255

motion that no longer exists. This reading of Ching, we believe, is consistent with

subsequent Second Circuit precedent. See Whab v. United States, 408 F.3d 116, 119

(2d Cir. 2005) (where subsequent § 2255 motion will not be before the district court

together with initial § 2255 motion, because in the meantime a COA has been denied

on the initial § 2255 motion, there is “no reason . . . to instruct the district court to

treat the new petition as a motion to amend the initial petition”).

                                           B

      There is one more matter to address. When a person files a second or

successive motion to vacate without having obtained the appropriate authorization

from the court of appeals, the proper remedy is to dismiss the claims raised in the

motion. See 28 U.S.C. § 2244(b)(2)-(3). The district court properly concluded,

                                           6
consistent with the text of § 2244(b)(2-(3), that it could not hear Mr. Terrell’s motion

to reopen and reduce sentence, but it denied the motion instead of dismissing it. So

that there is no confusion should there be any later proceedings regarding Mr. Terrell,

the district court shall, on remand, modify its order to reflect that the motion is

dismissed.

                                    CONCLUSION

      The district court’s decision is affirmed as modified.

      AFFIRMED AS MODIFIED.




                                           7
ANDERSON, Circuit Judge, concurs in the judgment.




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