                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2005

In Re: Salemo
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1530




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Recommended Citation
"In Re: Salemo " (2005). 2005 Decisions. Paper 1213.
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                                                             NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   NO. 04-1530
                                ________________

                               IN RE: GEORGE SALEMO,
                                                 Petitioner

                                 _____________________

                On an application pursuant to 28 U.S.C. §§ 2255 and 2244
                 to file a second or successive motion to vacate sentence
                                  under 28 U.S.C. § 2255
                            ______________________________

             Submitted Under Third Circuit LAR 34.1(a) on January 13, 2005

     Before: ROTH and CHERTOFF,* Circuit Judges, and IRENAS,** District Judge

                                   (Filed: May 11, 2005)

                                      _____________

                                        OPINION
                                      _____________


ROTH, CIRCUIT JUDGE

       Petitioner George Salemo was convicted in October 1993 of two counts of bank

fraud in violation of 18 U.S.C. § 1344. In March 1994, before he was sentenced, Salemo



    * This case was submitted to the panel of Judges Roth, Chertoff and Irenas. Judge
Chertoff resigned after submission, but before the filing of the opinion. The decision is
filed by a quorum of the panel. 28 U.S.C. § 46(d).

    ** Honorable   Joseph E. Irenas, United States District Judge for the District of New
Jersey, sitting by designation.
filed a pro se motion pursuant to Fed. R. Crim. P. 33 claiming that counsel was

ineffective. As it was untimely under Rule 33, the District Court construed the motion as

one filed pursuant to 28 U.S.C. § 2255. Salemo was sentenced in April 1994 to 96

months imprisonment. The District Court then denied his § 2255 motion. Salemo

separately appealed his conviction and sentence, and the denial of his § 2255 motion.

Having concluded that the sentencing colloquy was inadequate, we affirmed Salemo’s

conviction and the order denying his § 2255 motion, but remanded for resentencing.

United States v. Salemo, 61 F.3d 214 (3d Cir. 1995). Salemo was resentenced on

December 14, 1995 to 87 months imprisonment to be served consecutively to a 120-

month term of imprisonment imposed by a federal District Court in Arizona for a similar

scheme. We affirmed the new sentence by Judgment Order. United States v. Salemo, 91

F.3d 127 (3d Cir. 1996) (table).

       Salemo unsuccessfully sought to challenge his conviction and sentence over the

course of the next several years through the filing of a petition pursuant to 28 U.S.C. §

2241 and several applications for leave to file a second or successive motion under 28

U.S.C. § 2255. In his most recent application, the one currently before the Court, Salemo

seeks leave to file a second or successive motion to vacate sentence under § 2255 on the

basis of the Supreme Court’s decision in Castro v. United States, 540 U.S. 375 (2003).

       In Castro, the Supreme Court held that “the District Court must notify the pro se

litigant that it intends to recharacterize the pleading, warn the litigant that this



                                                2
recharacterization means that any subsequent § 2255 motion will be subject to the

restrictions on ‘second or successive’ motions, and provide the litigant an opportunity to

withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he

has. If the court fails to do so, the motion cannot be considered to have become a § 2255

motion for purposes of applying to later motions the law’s ‘second or successive’

restrictions. § 2255, ¶ 8.” Id. at 383. The Supreme Court further concluded that its

“‘supervisory power’ determinations normally apply, like other judicial decisions,

retroactively, at least to the case in which the determination was made.” Id. We

appointed counsel for Salemo and directed the parties to address how the Supreme

Court’s decision in Castro impacts Salemo’s application. Briefing is completed and the

application is now ripe for disposition.

       Salemo argues that, like the petitioner in Castro, he has been denied his

constitutional and statutory right of access to the court as a result of the District Court’s

improper “re-characterization” of his Rule 33 motion as one filed pursuant to § 2255.

Petitioner insists that, given the factual similarities between his case and that at issue in

Castro, this Court must restore his right to challenge his conviction and sentence in a §

2255 proceeding. The government concedes that, under Castro, the District Court acted

improperly in recharacterizing Salemo’s motion for a new trial as a motion under 28

U.S.C. § 2255, and that Salemo should therefore be permitted to file a § 2255 motion in

the District Court. See Respondent’s Brief at 21. Accordingly, the government suggests



                                               3
that the instant application should be denied as unnecessary on the grounds that Salemo

never filed a previous § 2255 motion. The government further asserts that, in the interest

of justice, it will not raise a statute of limitations defense to a single, comprehensive §

2255 motion filed by Salemo in the District Court following the conclusion of this action.

       We agree with the parties’ contentions regarding the applicability of Castro.

Because Salemo has never filed a motion pursuant to § 2255, he does not need our

authorization to proceed with such a motion. See Williams v. United States, 366 F.3d

438, 439 (7 th Cir. 2004). Therefore, Salemo’s application for authorization to file a

second or successive motion pursuant to 28 U.S.C. § 2255 is denied as unnecessary.
