                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6445



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DANIEL ORIAKHI,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:92-cr-00283-MJG; 1:05-cv-02317-MJG)


Submitted:   May 18, 2007                  Decided:   June 18, 2007


Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Daniel Oriakhi, Appellant Pro Se. Robert Reeves Harding, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Daniel Oriakhi appeals from the district court’s order

dismissing his 28 U.S.C. § 2255 (2000) motion as successive.                           We

previously    granted     a    certificate        of    appealability,       and   after

further briefing, we find that Oriakhi’s motion was not successive.

Thus, we vacate the district court’s order and remand for further

proceedings.

           In 1992, Daniel Oriakhi was convicted by a jury of

conspiracy to distribute heroin and possession with intent to

distribute      heroin.         Oriakhi     was        sentenced    to   300       months

imprisonment, and we affirmed his convictions and sentence on

direct appeal.      United States v. Oriakhi, 57 F.3d 1290 (4th Cir.

1995).   On July 9, 1998, Oriakhi filed three documents, which were

docketed as a § 2255 motion, a motion to proceed in forma pauperis,

and a motion for court records.              On August 3, Oriahki resent the

documents and requested that an enclosed copy be date stamped and

returned to him.     He described the documents as a request for court

records with “an attached 28 U.S.C. § 2255 form, and a sworn . . .

indigent affidavit.”          These documents do not appear to have been

filed separately.

           On    August       10,   the   district       court     entered   an     order

requiring the Government to respond to Oriakhi’s § 2255 motion

within sixty days.        When Oriakhi received this order, he wrote a

letter to the court dated August 18, stating that his motions dated


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July 2 and August 3 were for release of court records under 28

U.S.C. § 753 (2000).   He stated that his motions did “not in any

form or fashion represent, a 28 U.S.C. § 2255 motion to vacate, set

aside or correct sentence, as mis-construed by the court.”      The

district court then directed the Government to answer Oriakhi’s

motion for court records. The Government promptly filed a response

to the motion for court records.   However, the Government did not

address the § 2255 motion until March 5, 1999, when it filed a

motion to dismiss.

          On March 11, the district court found that Oriakhi’s

§ 2255 motion was untimely and, therefore, declined to reach the

merits of Oriakhi’s transcript request. Oriakhi filed a motion for

reconsideration, stating that, because he never received any of his

requested records, he never filed a § 2255 motion.     The district

court denied the motion in a margin order.   We denied a certificate

of appealability and dismissed Oriakhi’s appeal.   United States v.

Oriakhi, No. 99-6513 (4th Cir. Aug. 11, 1999) (unpublished).     In

2001 and 2005, Oriakhi filed additional § 2255 motions.       These

motions were never docketed nor ruled upon.1

          In 2005, Oriakhi filed a motion for authorization to file

a successive § 2255 motion.    He sought to raise a claim under

United States v. Booker, 543 U.S. 220 (2005).   He also claimed that


     1
      In its brief, the Government appears to state that these
motions were denied; however, it provides no evidence to support
this assertion and admits that the motions were never docketed.

                              - 3 -
his first “§ 2255 motion” should not count against him for purposes

of restrictions against second or successive motions because he did

not intend for the motion to be construed as a § 2255 motion and he

was    not    given   notice    that    the    district      court    intended   to

recharacterize it or an opportunity to withdraw.                      He cited to

Castro v. United States, 540 U.S. 375 (2003).2

       In Castro, the Supreme Court held that, before a district

court recharacterizes a motion that a pro se federal prisoner has

labeled differently as his first § 2255 motion, the court must

notify the litigant of the intended recharacterization, warn the

litigant of the possible repercussions, and provide the litigant

with an opportunity to withdraw or amend the motion.                  540 U.S. at

383.       If the district court fails to provide the warning, “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.”             Id.     Finding that Oriakhi’s first

§ 2255 motion was improperly recharacterized, we denied the motion

for authorization as unnecessary, citing Castro and noting that

leave from this court was not required for Oriakhi to proceed in

district court.3


       2
      We denied a previous motion for authorization                      filed   by
Oriakhi in 2001, prior to the decision in Castro.
       3
      Oriakhi’s 2001 and 2005 § 2255 motions were neither docketed
nor considered, and thus, neither counted as Oriakhi’s “first”
§ 2255 motion. See United States v. Sosa, 364 F.3d 507, 509-10 n.2
(4th Cir. 2004).

                                       - 4 -
      Oriakhi then filed the instant § 2255 motion in the district

court raising two claims: (1) ineffective assistance in failing to

properly     counsel       Oriakhi    regarding      a     plea   offer    and

(2) unconstitutional sentence under Booker.                The district court

concluded that it was without jurisdiction to consider the motion

absent authorization from this court, despite this court’s prior

ruling that authorization was unnecessary.               The district court

stated that, after reviewing the record, “it is apparent that

Castro has no applicability in this case because none of the

Motions to Vacate filed by Petitioner were ever re-characterized by

this Court.”     The court reasoned that this court’s erroneous order

resulted from overlooking the denial of Oriakhi’s previous motion

for   authorization    and     from   relying   on   Oriakhi’s     misleading

description of the procedural background of the case.                  Oriakhi

timely appealed.     After we granted a certificate of appealability,

the Government filed a brief, arguing that Oriakhi’s motion was

“clearly successive” and that this court was likely “unaware” of

the motions filed in this case.

            On   appeal,    Oriakhi    challenges    the    district   court’s

determination that his § 2255 motion was successive.              The question

is whether Oriakhi’s 1998 filings constituted a first § 2255

motion.    On the one hand, Oriakhi did file a § 2255 form.            On the

other hand, Oriakhi repeatedly informed the court that he did not

intend his filings to be a § 2255 motion and that he submitted the


                                      - 5 -
form as support for his motion for court records.                    He explained

that he sought the court records in order to file a properly

supported § 2255 motion.        After a review of the record, we conclude

that Oriakhi’s first § 2255 motion did not constitute a “first”

motion under Castro.

              Moreover,   we   concluded      in   an    identical   manner       when

denying as unnecessary Oriakhi’s 2005 motion for authorization to

file a successive § 2255 motion.         Thus, even if the district court

disagreed with our conclusion, it was still bound to apply our

holding.      See South Atl. Ltd. P’ship v. Riese, 356 F.3d 576, 584

(4th Cir. 2004) (observing that mandate rule forecloses litigation

of issues decided by appellate court).

              Accordingly,     we   vacate    the       district   court’s    order

dismissing Oriakhi’s motion as successive and remand for further

proceedings. We express no opinion on the timeliness or the merits

of Oriakhi’s motion.         We dispense with oral argument because the

facts   and    legal   contentions     are    adequately      presented      in    the

material before the court and argument would not aid the decisional

process.



                                                            VACATED AND REMANDED




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