                                                                      [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                  FILED
                           ________________________        U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 MAY 07, 2002
                                  No. 01-12181                THOMAS K. KAHN
                            ________________________               CLERK

                          D. C. Docket No. 97-00097-CV-4

HERNAN O’RYAN CASTRO,

                                                         Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                            ________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                         _________________________
                                  (May 7, 2002)


Before WILSON, RONEY and FAY, Circuit Judges.

WILSON, Circuit Judge:

      We vacate our prior opinion, which was reported at 277 F.3d 1300, and

substitute this opinion in its place.
      Hernan O’Ryan Castro appeals the district court’s dismissal of his habeas

corpus petition, which was filed pursuant to 28 U.S.C § 2255. The district court

concluded that the petition was successive under § 2255, as amended by the 1996

Antiterrorism and Effective Death Penalty Act (AEDPA), and thus not entitled to

consideration.

      The dismissal of O’Ryan Castro’s petition raises an issue of first impression

in this Circuit: when a district court recharacterizes a federal prisoner’s

postconviction motion as a petition under § 2255, does that render the prisoner’s

subsequent attempt to file a § 2255 petition a “second or successive” petition

within the purview of the AEDPA amendments? We hold that under the AEDPA,

O’Ryan Castro’s subsequent § 2255 petition was properly deemed successive.

However, due to the strict limitations the AEDPA imposes on petitioners who wish

to file successive § 2255 petitions, we suggest that in the future, when a district

court unilaterally recharacterizes a prisoner’s pleading as a § 2255 petition, the

judge should also warn the petitioner of the consequences of this recharacterization

– that this recharacterized petition may be his first and only chance to seek relief

under § 2255.

                                 BACKGROUND




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       In 1992, O’Ryan Castro was convicted and sentenced to twenty years of

imprisonment for conspiracy to possess with the intent to distribute cocaine in

violation of 21 U.S.C. § 846, possession with the intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1), and conspiracy to import cocaine in violation of

21 U.S.C. § 963. We affirmed the convictions and sentence on March 24, 1994.

On July 11, 1994, O’Ryan Castro filed a pro se Motion For New Trial pursuant to

Federal Rule of Criminal Procedure 33 based upon newly discovered evidence.

The evidence consisted of proof that a witness, who testified against him at trial,

had entered into an immunity agreement with the government. The government

submitted a response in which it stated that it did not object to the motion as

demanding relief under both Rule 33 and § 2255. O’Ryan Castro then filed a pro

se reply in which he explained that he had filed his motion properly under Rule 33.

The district court treated O’Ryan Castro’s motion as requesting relief pursuant to

both Rule 33 and § 2255 and denied it on October 28, 1994. We affirmed the

district court’s ruling.

       On April 22, 1997, O’Ryan Castro filed his first self-styled § 2255 habeas

petition, alleging, among other things, that he failed to receive effective assistance

of counsel in violation of the Sixth Amendment. The district court denied this

petition and O’Ryan Castro appealed. After granting a certificate of appealability


                                           3
on the ineffective assistance claim, we vacated the order denying his petition and

remanded the matter for further evidentiary determinations. We also instructed the

district court to examine the record to determine whether O’Ryan Castro’s petition

was successive. The district court concluded that the petition was successive and

dismissed it due to its failure to meet the particular requirements imposed by the

amendments to § 2255 regarding successive petitions.

                            STANDARD OF REVIEW

      “We review de novo a district court’s denial of habeas corpus relief.”

Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001), cert. denied, __ U.S.

__ (2002). “A district court’s factual findings in a habeas corpus proceeding are

reviewed for clear error.” Id.

                                   DISCUSSION

      When O’Ryan Castro filed his motion for new trial pursuant to Rule 33

based upon newly discovered evidence, the district court recharacterized his Rule

33 motion as both a motion for a new trial and a § 2255 motion. As the district

court explained, O’Ryan Castro’s claims were based upon his constitutional right

to due process and were more properly raised in a § 2255 petition.

      District courts have always had the power to recharacterize pro se

petitioners’ motions. In fact, due to the frequency in which pro se litigants draft


                                          4
incognizable motions, “[f]ederal courts have long recognized that they have an

obligation to look behind the label of a motion filed by a pro se inmate and

determine whether the motion is, in effect, cognizable under a different remedial

statutory framework.” United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir.

1990). This accommodation was the result of the time-honored practice of

construing pro se plaintiffs’ pleadings liberally. See Haines v. Kerner, 404 U.S.

519, 520 (1972) (per curiam). In accordance with this practice, “district courts

routinely convert post-conviction motions of prisoners who unsuccessfully [seek]

relief under some other provision of law into motions made under . . . § 2255 and

proceed to determine whether the prisoner was entitled to relief under that statute.”

Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) (per curiam).

      In this particular case, the district court recharacterized O’Ryan Castro’s

motion as both a Rule 33 motion and § 2255 petition in 1994. The AEDPA took

effect approximately two years later, on April 24, 1996. The AEDPA, which

amended § 2255, bars federal prisoners from attacking their convictions through

successive habeas corpus petitions except in very limited circumstances. 28 U.S.C.

§ 2255. Specifically, successive applications may be heard only after an appellate

court certifies the petition, because it contains:

      (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

                                            5
      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. § 2255.

      In 1997, a year after the AEDPA was enacted, O’Ryan Castro filed a § 2255

petition, arguing ineffective assistance of counsel. Despite the fact that O’Ryan

Castro filed his first recharacterized Rule 33 and § 2255 petition before the

AEDPA’s effective date, we must apply the restrictions set forth under the

AEDPA. Congress made no exceptions for those who had filed their § 2255

petitions before the AEDPA was enacted and were now filing their second

petitions after the effective date of the AEDPA. Therefore, a second petition has

the capacity to trigger the procedural strictures that the AEDPA attaches to

successive habeas petitions. See Raineri v. United States, 233 F.3d 96, 99 (1st Cir.

2000). “If a district court receiving a motion under some other provision of law

elects to treat it as a motion under § 2255 and then denies it, that may cause the

movant’s subsequent filing of a motion under § 2255 to be barred as” successive

under the AEDPA. Adams, 155 F.3d at 583.

      In this case, the ineffective assistance of counsel claim was available to

O’Ryan Castro at the time he filed his initial motion for new trial, and he had an


                                          6
opportunity to raise this claim during the adjudication of his recharacterized § 2255

petition. Therefore, this subsequent § 2255 petition, filed three years later, is

successive because it does not meet either of the two requirements found under the

AEDPA – O’Ryan Castro’s second petition does not contain newly discovered

evidence,1 nor does the second petition address a new rule of constitutional law.

      While we must follow the restrictions on successive petitions as laid out by

the AEDPA and find O’Ryan Castro’s petition successive under the AEDPA, we

can suggest that in the future, district courts should warn petitioners of the

consequences of recharacterizing their motions as § 2255 petitions. We have

substantial fairness concerns with the result in this case. These same fairness

concerns have been articulated by the First Circuit in Raineri. 233 F.3d at 99.

      The petitioner in Raineri, like O’Ryan Castro, brought a Motion for

Correction of Sentence and/or New Trial pursuant to Federal Rule of Criminal

Procedure 35 and/or Rule 33 prior to the AEDPA’s effective date. Id. at 98. The

district court, acting sua sponte, found Rules 33 and 35 inapplicable and

recharacterized the motion as an application for relief under § 2255. Id. The

petitioner submitted a subsequent motion styled as a § 2255 petition, which the


      1
        According to the magistrate judge, O’Ryan Castro was “well aware of the
circumstances surrounding his post-arrest statements prior to his trial and the filing
of his motion.”
                                           7
district court deemed successive and thus dismissed for failure to obtain the

requisite authorization to proceed with a successive petition. Id. at 99. In

reversing this dismissal, the First Circuit concluded that “because the court acted

sua sponte and without any advance notice to the petitioner, [it could not] treat the

earlier pleading as a ‘first’ habeas petition for AEDPA purposes.” Id. at 100–01.

The court 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

petition without notice and an opportunity to be heard (or in the alternative, the

pleader’s informed consent), the recharacterized motion ordinarily will not count

as a ‘first’ habeas petition sufficient to trigger AEDPA’s gatekeeping

requirements.” Id. at 100.

      We are constrained, in this Circuit, to disagree with the holding in Raineri

because of our view that Congress, in enacting the AEDPA, imposed further

restrictions on a prisoner’s ability to file a second § 2255 petition. Felker v.

Turpin, 518 U.S. 651, 664 (1996) (“The [AEDPA] also codifies some of the pre-

existing limits on successive petitions, and further restricts the availability of relief

to habeas petitioners.”). Thus, if we were to relieve an entire class of petitioners

from any restriction at all on the filing of a second motion simply because their

first motions had been recharacterized, we might undermine the congressional


                                            8
purpose behind the AEDPA, which is to limit successive § 2255 petitions. Without

being given any additional instruction by Congress on this particular matter, we

must apply the AEDPA restrictions to successive § 2255 petitions and find O’Ryan

Castro’s petition successive.2

      However, we agree with the First Circuit’s remarks that a district court

should not “extinguish the petitioner’s one clear chance at habeas relief under the

AEDPA” without the petitioner’s informed consent. Raineri, 233 F.3d at 100.

Therefore, we feel we must note that in future cases where the petitioner is not

filing a second petition, 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 § 2255 petition, we would agree with a clear majority of the circuits

that district courts should warn prisoners of the consequences of recharacterization

and provide them with the opportunity to amend or dismiss their filings. United

States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999) (stating that “upon receipt of pro



      2
           Incidentally, Congress could have made an exception to the AEDPA rules
involving second motions and petitions for this set of circumstances, but it did not
do so. The rule as written by Congress applies across the board to all second
filings, except in the two carefully limited, narrow circumstances that are specified
in the statute. See 28 U.S.C. § 2255. Therefore, we cannot substitute our judgment
regarding this matter for that expressed by Congress and must apply the AEDPA to
all petitioners whether or not their initial recharacterized § 2255 petitions were
filed before or after the AEDPA was enacted.
                                           9
se pleadings challenging an inmate’s conviction or incarceration – whether styled

as a § 2255 motion or not – a district court should issue a notice to the petitioner

regarding the effect of his pleadings. This notice should advise the petitioner that

he can (1) have his motion ruled upon as filed; (2) if his motion is not styled as a §

2255 motion have his motion recharacterized as a § 2255 motion and heard as

such, but lose his ability to file successive petitions absent certification by the court

of appeals; or (3) withdraw the motion, and file one all-inclusive § 2255 petition

within the one-year statutory period.”); Adams, 152 F.3d at 584 (holding that “[a]t

least until it is decided whether such a conversion or recharacterization can affect

the movant’s right to bring a future habeas petition, district courts should not

recharacterize a motion purportedly made under some other rule as a motion made

under § 2255 unless (a) the movant, with knowledge of the potential adverse

consequences of such recharacterization, agrees to have the motion so

recharacterized, or (b) the court finds that, notwithstanding its designation, the

motion should be considered as made under § 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”); see also Henderson v. United States, 264 F.3d

709, 711 (7th Cir. 2001) (holding that a court should not deem a Rule 33 or other

mislabeled motion a § 2255 motion “unless the movant has been warned about the


                                           10
consequences of his mistake”); United States v. Kelly, 235 F.3d 1238, 1242 (10th

Cir. 2000) (“[W]e hold that district courts should use the procedure adopted in

Adams for dealing with pro se post-conviction motions not expressly made under §

2255 . . . .”); United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (adopting

the procedure set forth in Adams to address circumstances where a court is

presented with a pro se motion that could be recharacterized as a § 2255 motion).

      Therefore, we conclude that under the AEDPA’s strict limitations, O’Ryan

Castro’s petition is successive. However, in the future, we urge district courts to

be aware of these substantial fairness concerns and warn petitioners of the

consequences of the recharacterization of their filings as § 2255 petitions.

                                  CONCLUSION

      The district court’s dismissal of O’Ryan Castro’s § 2255 petition is hereby

affirmed. We find that O’Ryan Castro’s § 2255 petition is successive.

      AFFIRMED.




                                          11
RONEY, Circuit Judge, dissenting:

      I respectfully dissent. I would reverse the dismissal of Castro’s section 2255

motion as successive and remand for consideration on the merits following the

reasoning of the First Circuit’s opinion in Raineri v. United States, 233 F. 3d 96

(1st Cir. 2000).

      The decision here is in direct conflict with Raineri, the only case cited

directly addressing a pre-AEDPA motion that was “converted” to a section 2255

motion, followed by a post-AEDPA section 2255 motion. On facts very similar to

these, the Raineri court held that a sua sponte recharacterization ordinarily will not

count as a first petition and remanded the case back to the district court for

consideration of Raineri’s section 2255 motion on the merits. See also cases

involving post-AEDPA converted motions: Adams v. United States, 155 F.3d 582

(2d Cir. 1998) (movant must know of potential adverse consequences of

recharacterization and be given the opportunity to withdraw motion); United

States v. Miller, 197 F.3d 644 (3d Cir. 1999) (court must issue notice of the effect

of recharacterization and offer the opportunity to withdraw motion); United States

v. Seesing, 234 F.3d 456 (9th Cir. 2000) (movant must know consequences of

recharacterization, or the purpose of aiding pro se petitioner is frustrated); United

States v. Kelly, 235 F.3d 1238 (10th Cir. 2000) (following Adams); Henderson v.


                                          12
United States, 264 F.3d 709, 711 (7th Cir. 2001) (even though the district court

converted and denied a Rule 33 motion, “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 his mistake.”)

      The Fifth Circuit case of In Re Tolliver, 97 F.3d 89 (5th Cir. 1996), involved

a post-AEDPA, not a pre-AEDPA “converted” motion, in which the petitioner had

received full relief on his prior motion, relief which could have been granted only

upon a “conversion” to a § 2255 motion, and relief which the petitioner readily

accepted.

      We have found no case in which a pre-AEDPA motion that was “converted”

by the court and then denied barred a second post-AEDPA § 2255 motion.




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