                                                 Filed:   June 4, 2002

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                             No. 00-7578
                     (CR-97-288-V, CA-00-411-V)



United States of America,

                                                Plaintiff - Appellee,

          versus


Shahborn Emmanuel,

                                               Defendant - Appellant.



                             O R D E R



     The court amends its opinion filed May 7, 2002, as follows:

     On the cover sheet, section 3, line 3 -- the district judge’s

name is corrected to read “Lacy H. Thornburg, District Judge.”

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
            PUBLISHED

   UNITED STATES COURT OF APPEALS

          FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

     v.                                        No. 00-7578


SHAHBORN EMMANUEL,
    Defendant-Appellant.


Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.

Lacy H. Thornburg, District Judge.
 (CR-97-288-V, CA-00-411-V)

Argued: September 27, 2001

   Decided: May 7, 2002

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.


____________________________________________________________

Vacated and remanded by published opinion. Judge Traxler wrote the
majority opinion, in which Judge Niemeyer joined. Judge Widener
wrote a concurring opinion.

____________________________________________________________

                 COUNSEL

ARGUED: James Richard Glover, GLOVER & PETERSEN, P.A.,
Chapel Hill, North Carolina, for Appellant. Brian Lee Whisler, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Robert J. Conrad, Jr., United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

____________________________________________________________

                  OPINION

TRAXLER, Circuit Judge:

   In this appeal, we are asked to decide what procedures a district
court should follow prior to converting a prisoner's mislabeled or
unlabeled post-conviction motion into the movant's first § 2255
motion, see 28 U.S.C.A. § 2255 (West Supp. 2001). We hold that a
district court should give the movant notice of its intent to so construe
the motion and an opportunity to supplement or amend the motion to
the extent permitted by law to reflect all grounds for post-conviction
relief that the movant wishes to raise. Because the district court in this
case sua sponte construed Appellant Shahborn Emmanuel's post-
conviction Rule 35 motion as his first § 2255 motion without these
protections, we vacate the district court's orders denying Emmanuel
relief and remand for further proceedings.

             I.

   Emmanuel was convicted by a jury of one count of assault inflict-
ing bodily injury on a protected government employee. See 18
U.S.C.A. §§ 111(a)(1), (b), 1114 (West 2000). He was sentenced to
the maximum ten-year term of imprisonment, and this court affirmed
his conviction and sentence. See United States v. Emmanuel, No. 98-
4763, 1999 WL 1020548 (4th Cir. 1999) (per curiam) (unpublished),
cert. denied, 529 U.S. 1029 (2000).

   In August 2000, Emmanuel filed a motion to vacate his sentence.
He labeled it a Rule 35 motion, see Fed. R. Crim. P. 35, and cited
Jones v. United States, 526 U.S. 227 (1999), in support of his conten-
tion that his sentence had been unlawfully enhanced. Emmanuel had
never filed a § 2255 motion for relief from his sentence. The district
court apparently understood Emmanuel to argue that his sentence was
invalid because the district court had treated bodily injury as a sen-
tencing factor rather than an element of the charged offense. The dis-

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trict court, sua sponte and without notice to Emmanuel, construed the
motion as a § 2255 motion and summarily dismissed the motion
under Rule 4 of the Rules Governing Section 2255 Proceedings.

   Emmanuel then filed a motion for reconsideration in which he
attempted to clarify his motion to vacate and essentially argued that
the district court misapplied Jones in denying him relief. Emmanuel
stated that the district court had misunderstood his original motion
and that he meant to challenge the fact that use of a deadly weapon
was neither charged in the indictment nor submitted to the jury.
Emmanuel directed the court's attention to Apprendi v. New Jersey,
530 U.S. 466 (2000), as further authority for his contention that his
sentence was unlawful. The district court denied Emmanuel's motion
to reconsider, finding that use of a deadly weapon was not an element
of the charged offense.

   Emmanuel then filed a second motion to reconsider and argued that
the court erred by construing his original motion, styled as a Rule 35
motion, as a § 2255 motion. He also attached a proposed § 2255
motion reasserting the ground for relief raised in his Rule 35 motion
to vacate and listing several additional claims he wished to pursue in
a collateral proceeding. Emmanuel requested that his original motion
to reconsider be withdrawn, that the court consider the attached
§ 2255 motion, and that the court reconsider its order denying relief.
In the alternative, Emmanuel requested that the court treat the second
motion to reconsider as a notice of appeal from the prior orders. In
ruling on the second motion, the district court found that it properly
construed Emmanuel's Rule 35 motion as a § 2255 motion and
declined the invitation to treat the motion for reconsideration as a
notice of appeal. Accordingly, the district court again denied all
requested relief.

   Emmanuel noted a timely appeal from all of the district court's
orders. On appeal, Emmanuel argues that, in light of the strict limita-
tions on second or successive motions and the fact that he had addi-
tional grounds he wished to raise in a § 2255 motion, the district court
erred by sua sponte converting his Rule 35 motion into a § 2255
motion and ruling on the merits without giving him notice and an
opportunity to amend the motion. Since Emmanuel still had approxi-
mately six months left in which to file a timely § 2255 motion at the

             3
time of the district court's decision to treat his Rule 35 motion as a
§ 2255 motion, Emmanuel further contends that on remand the one-
year statute of limitations governing § 2255 motions should be tolled
for six months. See 28 U.S.C.A. § 2255 (providing a one-year statute
of limitations for § 2255 motions). For its part, the Government does
not take issue with Emmanuel's contention that the district court erred
by sua sponte construing Emmanuel's Rule 35 motion as a § 2255
motion without giving him notice and an opportunity to amend. The
Government, however, contends that the proper relief is simply to
have the district court consider the proposed § 2255 motion that
Emmanuel submitted with his second motion for reconsideration.

             II.

   The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), dramatically
transformed the landscape of post-conviction relief proceedings.
Among the AEDPA's more significant provisions is its stringent limi-
tation on a federal prisoner's ability to bring a "second or successive"
post-conviction motion pursuant to § 2255. See 28 U.S.C.A. § 2255.
Specifically, a prisoner may only bring a second or successive § 2255
motion in one of two circumstances: the prisoner must either (1) have
newly discovered evidence, or (2) be relying on a new rule of consti-
tutional law that the Supreme Court has made retroactively applicable
to collateral proceedings. See id.

   Before the AEDPA, district courts received various and sundry
post-conviction motions from prisoners, examined their substance and
the relief sought, and, when appropriate, routinely treated certain of
them as having been made pursuant to § 2255, regardless of the label
the prisoner gave the motion or the fact that no label was given at all.
A number of circuits, ours included, approved this practice because
at the time it benefitted the prisoner. See, e.g., Raines v. United States,
423 F.2d 526, 528 n.1 (4th Cir. 1970) (noting that a pleading that
seeks a writ of error coram nobis is properly treated as a motion under
§ 2255); see also Adams v. United States, 155 F.3d 582, 583 (2d Cir.
1998) (per curiam) ("Prior to the enactment of AEDPA, district courts
routinely converted post-conviction motions of prisoners who unsuc-
cessfully sought relief under some other provision of law into motions
made under 28 U.S.C. § 2255 and proceeded to determine whether the

             4
prisoner was entitled to relief under that statute."). Because of the
AEDPA's limitation on second or successive § 2255 motions, how-
ever, that practice can now have serious adverse consequences for the
movant. As the Second Circuit has observed:

        If a district court receiving a motion under some other provi-
        sion 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 a "second" § 2255.
        Thus a conversion, initially justified because it harmlessly
        assisted the prisoner-movant in dealing with legal technical-
        ities, may result in a disastrous deprivation of a future
        opportunity to have a well-justified grievance adjudicated.
        The 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. A prisoner convicted pursuant to
        unconstitutional proceedings might lose the right to have a
        single petition for habeas corpus adjudicated, solely by rea-
        son of a district court's having incorrectly recharacterized
        some prior motion as one brought under § 2255.

Adams, 155 F.3d at 583-84 (footnote omitted); see also United States
v. Miller, 197 F.3d 644, 649 (3d Cir. 1999) ("With AEDPA in place,
the practice of liberally construing post-conviction motions as § 2255
[motions] can, in the absence of cautionary or educational measures,
impair the ability of inmates to challenge their convictions on collat-
eral review. If each pro se post-conviction filing is treated as a § 2255
[motion], . . . inept [movants] face losing potentially valid constitu-
tional claims at the hands of judges who are applying a rule of liberal
construction that was created to benefit pro se claimants."). Conse-
quently, a prisoner must now be careful to include all of his grounds
for relief in his first § 2255 motion because his ability to raise other
grounds later has been severely curtailed.

   Recognizing these potential repercussions, the majority of our sis-
ter circuits in the post-AEDPA world have rendered decisions that
either limit the district court's ability to continue the practice of sua
sponte construing a post-conviction motion as a movant's first collat-
eral attack or ameliorate the impact of the AEDPA when the district

             5
court does so.1 The Second Circuit, for instance, now holds that a dis-
trict court may not sua sponte construe a post-conviction motion as
a § 2255 motion without first giving the movant (1) notice of its intent
to do so, (2) notice of the consequences of such a construction (i.e.,
the bar on second or successive motions and the applicable one-year
statute of limitations), and (3) an opportunity to withdraw the motion
and submit a more complete § 2255 motion within the one-year statu-
tory period. See Adams, 155 F.3d at 584; see also United States v.
Seesing, 234 F.3d 456, 464 (9th Cir. 2001) (adopting the same general
approach as Adams); United States v. Kelly, 235 F.3d 1238, 1242
(10th Cir. 2000) (adopting the Adams approach); Miller, 197 F.3d at
652 (adopting a notice requirement closely resembling but expanding
on the Adams approach).

   The First Circuit, on the other hand, held that district courts may
continue the practice of sua sponte construing a post-conviction
motion as an initial collateral attack but ameliorated the impact of
AEDPA when the district court does so. See Raineri v. United States,
233 F.3d 96, 100 (1st Cir. 2000). Specifically, the First Circuit pro-
vides that where the district court construes a post-conviction motion
as a § 2255 without the movant's informed consent, that particular
motion will not count as a "first" motion for purposes of the
AEDPA's bar on second or successive motions. See id.; see also Cas-
tro v. United States, 277 F.3d 1300, 1305 (11th Cir. 2002) (holding
that "a district court's recharacterization of a petitioner's initial post-
conviction motion will not be considered a `first' habeas petition for
____________________________________________________________
   1
     The only authority arguably to the contrary is the Fifth Circuit's deci-
sion in In re Tolliver, 97 F.3d 89 (5th Cir. 1996). In that case, Appellant
Tolliver filed a motion to dismiss his conviction in the district court,
which the district court, sua sponte and over Tolliver's objection, con-
strued as a § 2255 motion. The Fifth Circuit upheld the district court's
action, stating that "[w]hile Tolliver objected to the district court's con-
struing [his motion] as a § 2255 motion, there is nothing else it could
be." 97 F.3d at 90. But as other circuits have noted, Adams had not been
decided when Tolliver was decided, see, e.g., United States v. Miller, 197
F.3d 644, 651 (3d Cir. 1999), and the fairness of allowing a district court
to so construe a motion in light of AEDPA's limitation on second or suc-
cessive motions did not appear to be argued to the court in Tolliver.
Therefore the court did not address the very fairness concerns that the
other circuits have found so compelling. See id.

             6
AEDPA purposes unless the petitioner is given notice of the conse-
quences of such recharacterization"); Henderson v. United States, 264
F.3d 709, 711 (7th Cir. 2001) ("[W]e hold today . . . that we won't
deem a Rule 33 (or other mislabeled motion) a section 2255 motion
unless the movant has been warned about the consequences of his
mistake."). Thus, consideration of the first motion as a § 2255 motion
would not prejudice the movant's ability to later file a more compre-
hensive § 2255 motion, provided he or she does so within the one-
year limitations period provided by the AEDPA for such motions.

   Today we chart the course for district courts in this circuit to follow
when faced with a post-conviction motion, labeled as something other
than a § 2255 motion or not labeled at all, which nevertheless requests
the kinds of relief available only by way of § 2255. We hold that if
a prisoner files a motion that is not denominated a § 2255 motion and
the court at its option prefers to convert it into the movant's first
§ 2255 motion, the court shall first advise the movant that it intends
to so recharacterize the motion. The court shall also notify the movant
of the § 2255 restrictions on second or successive motions, the one-
year period of limitations, and the four dates in § 2255 to be used in
determining the starting date for the limitations period. The notice to
the movant shall set a reasonable amount of time for the prisoner to
respond to the court's proposed recharacterization and shall advise the
prisoner that failure to respond within the time set by the court will
result in the original motion being recharacterized as a § 2255 motion.
And, of course, if the movant does not respond within the time set by
the court, the court may proceed with its recharacterization of the
motion.2

   If, within the time set by the court, the movant agrees to have the
motion recharacterized or by default acquiesces, the court shall con-
____________________________________________________________
   2
     We decline to extend the applicability of the notice requirement today
imposed as far as the Third Circuit did in Miller. See Miller, 197 F.3d
at 652; see also Mason v. Meyers, 208 F.3d 414, 418 n.8 (3d Cir. 2000)
(noting that "Miller's prophylactic rule extended the Second Circuit's
holding in Adams"). If the movant files a motion properly denominated
as a § 2255 motion, the court may rule on its merits without taking the
prophylactic measures today prescribed regarding mislabeled or unla-
beled post-conviction motions.

             7
sider the motion as one under § 2255 and shall consider it filed as of
the date the original motion was filed. If the movant agrees to or
acquiesces in the recharacterization, the court should permit amend-
ments to the motion to the extent permitted by law. See United States
v. Pittman, 209 F.3d 314 (4th Cir. 2000) (holding that amendments
to a § 2255 motion made after expiration of the one-year statute of
limitations do not relate back to the original motion and are therefore
untimely). If, however, the movant responds within the time set by the
court but does not agree to have the motion recharacterized, the court
shall not treat it as a § 2255 motion but shall rule on the merits of the
motion as filed. Thus, for example, if a movant requests certain relief
pursuant to Rule 35 that is only available by way of § 2255, and that
movant objects to the court's proposal to recharacterize the motion,
the court shall simply rule on the Rule 35 motion as such.

   We wish to stress that the notice requirements imposed in this
opinion are based on the assumption that the recharacterization will
have some adverse consequence on the movant. In cases where no
adverse consequences will ensue, the district court need not give the
movant any notice prior to proceeding with the recharacterization.

            III.

   Accordingly, because Emmanuel was not given notice of the
adverse consequences of having his Rule 35 motion construed as an
initial § 2255 motion, we vacate the district court's orders denying
Emmanuel relief and remand the case for further proceedings. On
remand, the court should consider the grounds for relief stated in
Emmanuel's Rule 35 motion and those stated in Emmanuel's pro-
posed § 2255 motion together as one § 2255 motion, which shall be
deemed timely filed. Furthermore, because the district court construed
Emmanuel's timely filed post-conviction motion as his first § 2255
motion without the protections now prescribed and Emmanuel
objected to that construction within the one-year limitations period,
the district court should allow a reasonable amount of time for the
motion to be amended to reflect any additional alleged grounds for
relief.3 Cf. Adams, 155 F.3d at 584 n.2 ("[F]airness demands that the
____________________________________________________________
   3
     We express no opinion on the merits of any of Emmanuel's claims for
relief, nor do we speculate on what other claims Emmanuel may wish to
add to his § 2255 motion.

             8
statute of limitations be tolled to afford Adams an opportunity to file
his first § 2255 motion, provided that he does so promptly.").

VACATED AND REMANDED


WIDENER, Circuit Judge, concurring:

   I concur in the remand.

    Because the district courts in this circuit, for the last 30 years since
Haines v. Kerner, 404 U.S. 519 (1972), on pain of instant reversal,
have liberally construed the post-conviction applications for relief by
prisoners, whether state or federal, in my opinion, changing the rules
of procedure at this stage of the game without advising the district
courts explicitly a satisfactory form for compliance with our decision,
is less a service to the district courts than they should expect from us.

   Our two-page-plus requirements, slip Part II, p.7-8, are, perhaps
necessarily, expressed partly in generalities and in legal language not
easily construed. As such, I suggest they will lead to and encourage
boundless litigation. Absent explicit directions to the prisoner, in my
opinion a far preferable remedy would be that adopted by the First
Circuit in Ranieri v. United States, 233 F.3d 96 (1st Cir. 2000), and
by the Seventh Circuit in Henderson v. United States, 264 F.3d 709
(7th Cir. 2001). Both of those cases hold that when a district court,
at its own instance, without notice, converts a prisoner's request for
post-conviction relief into a § 2255 motion, the motion as sua sponte
converted will not count as a first petition or motion for habeas corpus
or like relief under § 2244(b)(3)(A) and § 2255.

             9
