                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________             U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                  JANUARY 02, 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
                        _________________________
                               (January 2, 2002)


Before WILSON, RONEY and FAY, Circuit Judges.

WILSON, Circuit Judge:

      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 AEDPA amendments? Finding some of the opinions of our

sister circuits who have considered this issue to be persuasive, we hold that

O’Ryan Castro’s subsequent § 2255 petition cannot be deemed successive.



                              I. BACKGROUND

      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


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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

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 his failure to meet the particular requirements imposed by the

amendments to § 2255 regarding successive petitions.

                           II. 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). “A district court's

factual findings in a habeas corpus proceeding are reviewed for clear error.” Id.


                                           3
                                III. DISCUSSION

      Due to the frequency in which pro se litigants draft 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 postconviction

motions of prisoners who unsuccessfully seek relief under some other provision of

law into motions made under . . . § 2255 and proceeded 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). These conversions were justified because

they were harmless and they also assisted prisoner-movants in dealing with legal

technicalities that might otherwise preclude prompt adjudication of their claims.

Id. “Several courts of appeals . . . have endorsed this approach as fair and

efficient.” United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999).

      On April 24, 1996, however, the AEDPA took effect and significantly

altered the innocuousness of liberally recharacterizing a petitioner’s postconviction


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motion. The AEDPA, which amended § 2255, bars federal prisoners from

attacking their convictions through successive habeas corpus petitions except in

very limited circumstances.1 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 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. “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. Adams, 155 F.3d at

583. Consequently, a “court’s act of conversion which we approved under pre-

AEDPA law because it was useful and harmless might, under AEDPA’s new law,

become extraordinarily harmful to a prisoner’s rights.” Id. at 583–84.




       1
         “A ‘successive petition’ raises grounds identical to those raised and rejected on the
merits on a prior petition.” Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986). A petitioner
abuses the writ when he “files a petition raising grounds that were available but not relied upon
in a prior petition.” Id.

                                                5
      O’Ryan Castro filed his initial Rule 33 motion2 prior to the enactment of the

AEDPA and his subsequent § 2255 petition after the AEDPA became effective.

Despite the fact that O’Ryan Castro filed his Rule 33 motion before the AEDPA’s

effective date, it nonetheless 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). This raises the question of whether the

district court properly considered O’Ryan Castro’s Rule 33 motion as his first §

2255 petition, making his subsequent § 2255 petition successive.

      Several circuits have prescribed specific guidelines for construing a

claimant’s self-styled § 2255 petition when a district court has recharacterized a

claimant’s prior postconviction motion as a § 2255 petition. The First Circuit, in

particular, decided a case that is strikingly similar to the present case. 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 that the district court deemed


      2
       The district court converted this motion into a § 2255 petition.

                                               6
successive and thus dismissed for his 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. In reaching this decision, the

First Circuit, persuaded by holdings of the Second and Third Circuits in prior

cases, gave due consideration to the importance of protecting a claimant’s right to

habeas review. Id. at 99–101.

      Two years before the First Circuit decided Raineri, the Second Circuit held,

             At 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.

Adams, 155 F.3d at 584. Similarly, the Third Circuit, “conclude[d] that district

courts should discontinue their practice of automatically treating pro se,

postconviction motions as § 2255 petitions.” United States v. Miller, 197 F.3d




                                            7
644, 652 (3d Cir. 1999). The Third Circuit, however, went a step further than the

procedure announced by the Second Circuit, stating that

       upon receipt of pro 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.

Id. It also held that this rule was narrow and would apply prospectively – meaning

that “a pro se petitioner who filed a pre-AEDPA pleading, which was recast as a §

2255 motion, is bound by the existing provisions of AEDPA regarding successive

second or successive petitions.” Id.3

       In addition to the First Circuit, the Seventh, Ninth, and Tenth Circuits have

adopted the views expressed by the Second and Third Circuits. See 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 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

       3
         We should note that the petitioners in both Adams and Miller filed their initial
postconviction motions after the effective date of the AEDPA. Adams, 155 F.3d at 582–83;
Miller, 197 F.3d 652–53.

                                              8
procedure adopted in Adams for dealing with pro se postconviction 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).

      Only one circuit has taken an opposite approach on this issue. In In re

Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (per curiam), which was the first case to

address this issue, the Fifth Circuit upheld the district court’s unilateral

recharacterization of the petitioner’s previous pro se motion as a § 2255 motion

and held that, because the petitioner had filed such a motion, any subsequent §

2255 motion he filed required certification by a court of appeals. The court also

determined that despite the petitioner’s objection to the district court’s conversion

of his initial postconviction motion, the motion was incapable of being construed

as anything other than a § 2255 motion. Id. In discussing Tolliver, the Third

Circuit noted that the case “was decided two years before Adams and almost

immediately after AEDPA’s enactment.” Miller, 197 F.3d at 651. It opined that

the Fifth Circuit may have decided the case differently if it had the benefit of the

Second Circuit’s discussion. Id. We find this assertion remarkably plausible,




                                            9
because we certainly are persuaded by the courts that have discussed this issue

since Tolliver.

      Unlike the petitioner in Tolliver, O’Ryan Castro’s Rule 33 motion for a new

trial asserted a cognizable ground for relief. The motion was based upon alleged

new evidence, which Rule 33 explicitly provides as a basis for bringing such a

motion. See United States v. Kersey, 130 F.3d 1463, 1465 n.2 (11th Cir. 1997). In

response to the government’s motion, the district court considered the motion as

requesting relief under both Rule 33 and § 2255. Thus, also unlike Adams, Miller,

and Raineri, the district court acted on the government’s motion, and not sua

sponte. This, however, is a distinction without a difference. The more critical

factor is whether O’Ryan Castro knew the consequences of the district court’s

actions; and much the same as the litigants in Adams, Miller, Henderson, and

Raineri, there was no protocol in place to ensure that O’Ryan Castro had such

knowledge. Because O’Ryan Castro filed his initial postconviction motion pre-

AEDPA, it is inconceivable that he, or any pro se litigant during that time, could

have foreseen the ultimate consequences of a district court’s recharacterization (sua

sponte or upon the government’s motion) of his postconviction motion. When the

district court recharacterized his Rule 33 motion, O’Ryan Castro made the effort to

reply in a manner that reaffirmed his intent to move for a new trial under that rule


                                         10
rather than seek habeas relief. It is therefore probable, not just possible, to

conclude that he would have mounted a much stronger campaign to defeat the

district court’s recasting of his Rule 33 motion if he was aware that his subsequent

§ 2255 petition would face nearly insurmountable scrutiny.

      In sum, we join the majority of circuits that have addressed this issue.

Whether a petitioner’s initial postconviction motion was filed before or after the

AEDPA’s effective date or whether the district court’s recharacterization of that

motion was sua sponte or upon the government’s motion, a district court’s

recharacterization of a petitioner’s initial postconviction motion will not be

considered a “first” habeas petition for AEDPA purposes unless the petitioner is

given notice of the consequences of such recharacterization. Requiring a district

court to ensure that a petitioner realizes the ramifications of a court’s decision to

convert his postconviction motion is an appropriate means of apprizing all

defendants of the circumstances that may impair or preserve their right to habeas

review. We do not endeavor to burden the district courts with onerous disclosure

requirements. As long as a petitioner is not blindsided by having to meet the new

criteria in § 2255 for successive petitions, the district court’s obligation is satisfied.



                                 IV. CONCLUSION


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

VACATED. We find that O’Ryan Castro’s § 2255 petition is not successive and

REMAND this case to the district court to consider the merits of his petition.

      VACATED and REMANDED.




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