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


9-6-2005

In Re: Wagner
Precedential or Non-Precedential: Precedential

Docket No. 03-4254




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                                           PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 03-4254


           IN RE: JOSEPH L. WAGNER,
                              Petitioner


         On Request for Permission to File
   a Second or Successive Habeas Corpus Petition
          Pursuant to 28 U.S.C. § 2244(b)


    Appeal from the United States District Court
       For the Middle District of Pennsylvania
   District Judge: Honorable William W. Caldwell
                    ____________

Submitted on Motion Under Third Circuit LAR 34.1(a)
                   May 23, 2005

Before: SCIRICA, Chief Judge, ALITO and ROSENN,
                 Circuit Judges.

              (Filed September 6, 2005 )
R. Damien Schorr
1015 Irwin Drive
Pittsburgh, PA 15236
       Counsel for Petitioner

Theodore B. Smith, III
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Christian A. Fisanick
Office of United States Attorney
235 N. Washington Avenue
Scranton, PA 18501

       Counsel for Respondent

                        ____________

                 OPINION OF THE COURT
                      ____________

ROSENN, Circuit Judge.

       Joseph Wagner was convicted in the U.S. District
Court for the Middle District of Pennsylvania in 1993 of one
count of violating 21 U.S.C. § 856(a)(2), for using his store in
York, Pennsylvania, for the manufacture and distribution of
crack cocaine. In the ensuing years, Wagner has persistently
pursued unsuccessful efforts for post-conviction relief. In this

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latest chapter of these drawn-out collateral proceedings,
Wagner ostensibly seeks leave to file a second or successive
motion to vacate his judgment of conviction and sentence,
pursuant to 28 U.S.C. §§ 2244 and 2255. Alternatively, he
argues that he needs no authorization to file a second or
successive § 2255 motion, on the basis of Castro v. United
States, 540 U.S. 375 (2003). For the following reasons, we
agree that Wagner is entitled to file a § 2255 motion without
obtaining this Court’s permission. Accordingly, we vacate
the District Court’s orders denying Wagner’s § 2255 motions
pursuant to 28 U.S.C. § 2244(b)(3)(A).

                                I.

        Because it is central to our holding, we describe the
procedural history of Wagner’s case in some detail. In 1993,
Wagner pleaded nolo contendere to a charge under 21 U.S.C.
§ 856(a)(2). On February 28, 1994, the U.S. District Court
for the Middle District of Pennsylvania sentenced Wagner to
188 months’ imprisonment. Wagner did not file a direct
appeal. Rather, he moved to strike the judgment and to
withdraw his plea, on the ground of ineffective assistance of
counsel. (“First Motion”) From the record before us, it is
unclear under what statute(s) Wagner brought this motion, but
Wagner admits that this was his “first . . . collateral attack” on
his judgment of conviction and sentence. The Government
argues that the District Court “seriously entertained Wagner’s
initial motion” and conducted “an evidentiary hearing on
Wagner’s claims of ineffective assistance of counsel.” On
April 24, 1995, the District Court denied Wagner’s motion.
On July 24, 1996, this Court affirmed that denial. See United

                                3
States v. Wagner, 92 F.3d 1174 (3d Cir. 1996) (table).

       A few months later, in October 1996, Wagner filed a
pro se motion for post-conviction relief in the District Court,
claiming opaquely that the District Court lacked jurisdiction
to enter a criminal judgment against him. (“Second Motion”)
Wagner characterized the motion as an “ex parte Rule
60(b)(6) motion,” and explicitly stated that it was “not a §
2255 Motion.” The District Court, however, recharacterized
the motion as: “a pro se motion to vacate his sentence under
28 U.S.C. § 2255, styled as an ‘ex parte Rule 60(b)(6)
motion.’” In an order dated October 31, 1996, the District
Court denied the motion. This Court denied a certificate of
appealability, pursuant to 28 U.S.C. § 2253(c)(2), because
Wagner had not made a substantial showing of the denial of a
constitutional right. Wagner filed a petition for writ of
certiorari, which the U.S. Supreme Court denied on October
14, 1997. See Wagner v. United States, 522 U.S. 925 (1997).
Wagner now argues that the District Court’s failure to notify
him of its intention to transform his Rule 60(b)(6) motion into
a § 2255 motion, to apprise him of the consequences of this
recharacterization, and to allow him an opportunity to
withdraw or amend the motion, violated his rights under
Castro v. United States, 540 U.S. 375 (2003).

        On May 6, 1997, before Wagner’s Second Petition was
finally adjudicated, he filed a motion to vacate, set aside, or
correct his sentence, under 28 U.S.C. § 2255. (“Third
Motion”) The District Court denied this motion on the
ground that it was his second or successive § 2255 motion,
which, therefore, required him to obtain an order of this

                               4
Court, pursuant to 28 U.S.C. § 2244(b)(3)(A), authorizing the
District Court to review his claims.1 On September 18, 1997,
this Court entered an order denying a certificate of
appealability, and declaring that Wagner’s motion to vacate
his conviction was a successive § 2255 motion which required
this Court’s authorization, pursuant to § 2244, before the
District Court could consider it. Wagner did not file a petition
for writ of certiorari.

       In 2001, Wagner filed yet another § 2255 motion in the
District Court, this time seeking relief under Apprendi v. New
Jersey, 530 U.S. 466 (2000). (“Fourth Motion”) The District
Court denied this motion, and Wagner did not appeal to this
Court, because he “believed it to be frivolous and [he] did not
want to ‘waste’ the Court’s valuable time.’”



 1
        28 U.S.C. § 2244(b)(3)(A) provides: “Before a second or
successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider
the application.” Under § 2255, the courts of appeals may
authorize a second or successive § 2255 motion only if it is
based on “(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255.

                               5
        Finally, Wagner initiated the instant proceedings in
October 2003, by filing a motion under 28 U.S.C. § 2244 for
an order of this Court authorizing the District Court to
consider a second or successive § 2255 motion. Wagner
claims that he intends to present new claims of ineffective
assistance of trial counsel, and to challenge various sentence
enhancements. Counsel was appointed to represent Wagner,
specifically to address the impact on Wagner’s motion of
Castro v. United States, 540 U.S. 375 (2003). Through
counsel, Wagner argues that the District Court’s
transformation of his Rule 60(b)(6) motion into one under §
2255 violated Castro. He argues that, therefore, he “never
filed a first 2255 motion and consequently does not need
approval from this Court to file the motion that he now
contemplates.”

                              II.

        The district court carefully reviewed Wagner’s Second
Motion, filed in October 1996, and concluded that it attacked
the jurisdiction of the District Court in imposing the judgment
of conviction and sentence. Thus, although it was labeled as a
motion under Fed. R. Civ. P. 60(b)(6), it was in substance a
motion under 28 U.S.C. § 2255. We affirmed. Subsequently,
however, the U.S. Supreme Court announced its decision in
Castro v. United States, in which it acknowledged that federal
courts sometimes recharacterize motions brought by pro se
prisoners, but that this practice could result in unintended
consequences for the pro se litigants. In an opinion authored
by Justice Breyer, the Court held that, before “a court
recharacterizes a pro se litigant’s motion as a first § 2255

                              6
motion,” the court “must notify the pro se litigant that it
intends to recharacterize the pleading,” as well as “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 it so that it contains all the §
2255 claims he believes he has.” Castro, 540 U.S. at 383. “If
the court fails to do so,” then “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.” 2 Id. This court also held in United States v.
Miller, 197 F.3d 644, 646 (3d Cir. 1999) that district courts
must first take certain “prophylactic measures” before
recharacterizing a pro se petitioner's post-conviction motion
as a § 2255 motion denominated as such.

       Over the past decade, Wagner has filed four motions in
the District Court for post-conviction relief. The District
Court denied Wagner’s first two motions on the merits. This
Court affirmed. However, under Castro, neither of these
documents are properly viewed as motions under § 2255.
Wagner’s first motion did not invoke § 2255 and the order
denying the motion did not construe it as such. The District
Court recharacterized Wagner’s Rule 60(b)(6) motion, his


  2
        The Supreme Court applied its holding to Castro’s case,
noting that its “‘supervisory power’ determinations normally
apply, like other judicial decisions, retroactively, at least to the
case in which the determination was made.” Castro, 540 U.S.
at 383.

                                 7
Second Motion, as a motion under § 2255, without notifying
Wagner and providing him with an opportunity to withdraw
the motion or amend it so that it contained every § 2255 claim
he believed he had. Castro, 540 U.S. at 383. Accordingly,
Wagner’s Second 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.
Thus, Wagner’s Third Motion was not a second § 2255
motion and his Fourth Motion was not a successive § 2255
motion.

       Although we understand the Government’s frustration
with Wagner’s efforts to further protract these collateral
proceedings by capitalizing on this Castro error, we hold that
Wagner is entitled to file a motion pursuant to § 2255.
Accordingly, the District Court’s orders denying Wagner’s
Third and Fourth Motions as second or successive § 2255
motions are vacated.

                              III.

       For the foregoing reasons, Wagner does not require the
permission of this Court to file a § 2255 motion. The case
will be remanded to the District Court for further proceedings
not inconsistent with this opinion.




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