                                                                     [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 05-10896                    ELEVENTH CIRCUIT
                                                                          MAY 23, 2006
                                Non-Argument Calendar
                        -------------------------------------------- THOMAS K. KAHN
                                                                            CLERK

           D.C. Docket Nos. 00-00473-CV-DF-5 & 92-00026 CR-DF

STACY FULLWOOD,

                                                         Petitioner-Appellant,

                                          versus

R. WILEY, Warden, Federal Correctional
Institution, U.S. Department of Justice,
Federal Bureau of Prisons, Talladega, Alabama,

                                                         Respondent,

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

              ----------------------------------------------------------------
                   Appeal from the United States District Court
                        for the Middle District of Georgia
              ----------------------------------------------------------------

                                  (May 23, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:


      Federal prisoner Stacy Fullwood appeals the district court’s dismissal of his

“Motion for Recall of Mandate and Reconsideration of § 2255 Denial,” (the

“Motion for Recall”) which the district court construed as an impermissibly

successive 28 U.S.C. § 2255 motion. Reversible error exists; we vacate the

district court’s dismissal order and remand.

      In July 2000, Appellant filed a § 2241 petition challenging his sentence.

The district court recharacterized this motion as a § 2255 motion and denied it as

untimely. We affirmed the district court’s decision in October 2002. Appellant

filed the Motion for Recall in November 2004, attacking his sentence. The district

court sua sponte recharacterized the Motion for Recall as a § 2255 motion, which

the court dismissed as successive. We issued a certificate of appealability

(“COA”) on this issue:

      Whether the district court violated Castro v. United States, 124
      S.Ct. 786 (2003), by treating [A]ppellant’s “Motion for Recall” as an
      impermissibly successive § 2255 motion to vacate, when the court
      construed [his] previous 28 U.S.C. § 2241 petition as [a] “first” § 2255
      motion without informing him of the consequences of the
      recharacterization or giving him the opportunity to amend or withdraw
      the petition?

Neither party has moved to expand the COA.



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       Appellant contends that, because he did not receive notice of the district

court’s recharacterization of his § 2241 petition and he did not have an

opportunity to amend or withdraw it, this petition did not render his 2004 Motion

for Recall a successive § 2255 motion.1

       We review de novo the district court’s dismissal of a § 2255 motion as

second or successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir.

2002). A criminal defendant may not file a second or successive § 2255 motion

unless he first receives leave to do so from the appropriate court of appeals.

United States v. Garcia, 181 F.3d 1274, 1275 (11th Cir.1999). But for a § 2255

motion to be successive, the defendant must have filed a previous § 2255 motion.

In Castro, the Supreme Court placed limits on when a pro se pleading, which a

district court recharacterizes as a § 2255 motion, will render subsequent § 2255

motions successive.

       [W]hen a [district] court recharacterizes a pro se litigant’s motion as a
       first § 2255 motion . . . the district court must notify the pro se litigant
       that it intends to recharacterize the pleading, warn the litigant that this
       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

   1
    The government argues that, because (1) the § 2241 petition and the Motion for Recall sought
the same relief, and (2) the Motion for Recall would be untimely, the district court’s conclusion that
the motion was successive was harmless error. We decline to address these arguments as outside
of the scope of the COA. The Government, however, is free to raise these issues on remand. The
district court should have the first opportunity to address these arguments.

                                                  3
      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.

Castro, 124 S.Ct. at 792.

      The record contains no indication that the district court advised Appellant of

its intention to recharacterize his 2000 § 2241 petition as a § 2255 motion. And

we do not see that Appellant was warned that his 2000 petition would render

subsequent § 2255 motions successive or that he was given an opportunity to

amend or withdraw the petition. The 2000 § 2241 petition, thus, did not render the

instant Motion for Recall an impermissibly successive § 2255 motion. The district

court erred by dismissing Appellant’s Motion for Recall as a successive § 2255

motion: we vacate its order dismissing Appellant’s motion and remand for further

proceedings. We express no opinion on the timeliness or the merits of Appellant’s

motion, issues that the district court may consider on remand.

      VACATED AND REMANDED.




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