                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT         FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               July 14, 2005
                               No. 04-15159
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D.C. Docket No. 94-00529-CR-UUB

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

      versus

ANTHONY LEON DAVIS,

                                                        Defendant-Appellant.

                        __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                         _________________________

                                 (July 14, 2005)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      In United States v. Davis, No. 95-5378 (decided May 8, 1997) (not

published), we affirmed appellant Anthony Leon Davis’s conviction and sentence
for possession of cocaine. Thereafter, Davis moved the district court to vacate his

conviction and sentence pursuant to 28 U.S.C. § 2255. The district court denied

his motion, and we refused to grant a certificate of appealability. On July 29,

2004, Davis moved the court to dismiss the indictment (in the case that led to his

conviction and sentence for possession of cocaine). Although Davis’s motion

stated that it was being filed pursuant to 18 U.S.C. § 3742, the district court

treated the motion as a motion filed under § 2255 and dismissed it because Davis

had not obtained leave of court as required by 28 U.S.C. §§ 2244(a) and 2255.

       Davis now appeals the court’s ruling. We affirm. The court properly

treated the motion as a successive § 2255 petition.1

       AFFIRMED.




       1
          The district court considered whether, before ruling on the motion, to advise Davis that it
would treat the motion as having been filed pursuant to § 2255. See Castro v. United States, 540
U.S. 375, 124 S. Ct. 786, 157 L. Ed. 2d 778 (2003). The court concluded that Castro’s notice
requirement only applies to a defendant’s first collateral attack on his conviction or sentence
pursuant to a motion that is not labeled a § 2255 motion. The instant motion was not Davis’s first
collateral attack on his conviction and sentence; hence, Castro notice was not required.

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