*1 at time for apply again she could CASTRO, Hernan O’RYAN periods involved her
benefits for the Petitioner-Appellant, reason, claims, for that denied forego further review at she decided to time.”). America, UNITED STATES not reliance does exist Detrimental Respondent-Appellee. No reliance has present dispute. No. 01-12181. demonstrated, assertion save bald been counsel. by Loudermilk’s Con reliance Appeals, Court of United States assertion, Loudermilk testi trary to this Eleventh Circuit. his failure to follow length fied at 7,May application the initial through with condition,3 by due to his mental could not
implication, means Loudermilk notice. If
have relied the defective by in fact been mislead
Loudermilk had notice, requested he would have application or filed a new within
hearing receipt time after of the defec
reasonable Instead, Loudermilk waited
tive notice. years before
more than four Thus, application. Loudermilk did detriment, upon the defec rely, to his
tive notice received in the Notice of Recon 15,1983. February
sideration dated
Conclusion
Although the notice received Louder- defective,
milk was this court cannot exer- subject jurisdiction matter because
cise showing
there no has been detrimental
reliance on notice Louder- the defective
milk.
AFFIRMED. adjudged competent ty has not 3. Loudermilk was to be at the relevant time. Loudermilk challenged finding. any significant and not under mental disabili-
WILSON, Judge: Circuit We vacate our opinion, which was reported 1300, at 277 F.3d and substitute opinion in place. its
Hernán O’Ryan appeals Castro the dis- trict court’s dismissal corpus petition, which was pursuant filed to 28 U.S.C 2255. The district court conclud- ed that petition was successive under 2255, as amended the 1996 Antiter- rorism and Effective Penalty Death Act (AEDPA), and thus not entitled to consid- eration. dismissal of
tion raises an impression issue of first in this Circuit: when a district court rechar- prisoner’s acterizes a federal postconvic- tion motion 2255, as a does that prisoner’s render the subsequent attempt to file a a “second successive” within purview of the AEDPA amendments? We hold that under subsequent § 2255 petition was properly deemed successive. due to the strict imposes limitations petitioners who to file wish petitions, suggest future, when a district court unilaterally prisoner’s recharacterizes a pleading as a judge should also warn consequences of this recharacterization —that this recharacter- ized may be his first and only chance to seek relief under Frick, Michael G. Norman Daniel Lo- BACKGROUND vein, Hall, Booth, Smith & Slover, PC, 1992, O’Ryan Castro was convicted Brunswick, GA, for Petitioner-Appellant. twenty years sentenced to imprison- Savannah, Amy Copeland, GA, Lee for ment for possess conspiracy RespondenL-Appellee. intent to distribute cocaine violation of 846, possession
21 U.S.C.
with the intent
to distribute
cocaine
violation of 21
841(a)(1),
U.S.C.
conspiracy
to im-
WILSON,
FAY,
port
Before
RONEY and
cocaine
of 21
violation
Judges.
Circuit
§ 963. We affirmed the convictions and
July
DISCUSSION
on March
1994. On
sentence
filed a
se Motion
O’Ryan Castro
filed his mo
When
Castro
pursuant to Federal Rule
For New Trial
tion for new trial
to Rule 33
upon newly
33 based
Criminal Procedure
*3
evidence,
upon newly discovered
based
The evidence con-
evidence.
discovered
district court recharacterized his Rule 33
witness, who testified
proof that a
sisted of
motion as both a motion for a new trial
trial,
an
had entered into
against him at
§
motion. As
district court
and a 2255
government.
immunity agreement
explained, O’Ryan Castro’s claims were
response
in
The
submitted
government
right to due
based
his constitutional
object
it
which it stated that
did
in
process
properly
and were more
raised
relief under
demanding
as
both
motion
petition.
a 2255
then
O’Ryan
2255.
Castro
Rule 33
always
pow
had the
District courts have
explained
in
he
pro
reply
filed a
se
which
pro
petitioners’
se
mo
er to recharacterize
properly under
that he had filed his motion
fact,
in
frequency
tions.
due to the
The district
treated
Rule 33.
litigants
incognizable
se
draft
O’Ryan
requesting
motion as
re-
Castro’s
motions,
recog
long
“[f]ederal courts have
to
Rule 33 and
lief
both
28,
they
obligation
an
to look
it on October
1994.
nized
have
and denied
We
ruling.
the district court’s
by pro
affirmed
behind the label of a motion filed
se inmate and determine whether the mo
22, 1997, O’Ryan
filed
April
On
Castro
is,
effect, cognizable
in
under a differ
self-styled
petition,
his first
habeas
statutory
ent remedial
framework.” Unit
among
things,
other
that he failed
alleging,
Jordan,
622,
ed
v.
624-25
States
in
assistance of counsel
to receive effective
(11th Cir.1990). This accommodation was
Amendment. The
violation
Sixth
petition
practice
the result of the time-honored
of
district court denied this
O’Ryan
appealed.
granting
Castro
After
construing pro
plaintiffs’ pleadings
lib
appealability
certificate of
on the ineffec-
Kerner,
erally. See Haines v.
404 U.S.
claim,
vacated the order
tive assistance
519, 520,
594,
92 S.Ct.
proven light and viewed of the evi- of the two whole, requirements found under dence as a would be sufficient the AEDPA— establish clear and evi- Castro’s second convincing does not newly evidence,1 dence that no contain reasonable factfinder discovered nor have found the does the guilty would movant address a new *4 offense; the or rule of constitutional law. law, a new rule of constitutional While we must follow the restrictions on
made retroactive to cases on collateral
petitions
as laid out by the
Court,
Supreme
that
review
was AEDPA
O’Ryan
and find
previously unavailable.
successive under the
we can sug-
§
28
2255.
future,
gest
that
in the
district courts
should warn
of the conse-
1997, year
In
a
AEDPA
after the
quences of recharacterizing their motions
enacted,
O’Ryan
Castro filed a
2255
§as
petitions.
2255
We have substantial
petition, arguing ineffective assistance of
fairness concerns with the result
in this
Despite
counsel.
the fact
that
case. These same fairness concerns have
Castro filed his first recharacterized Rule
been articulated
the First Circuit in
33 and
before the AED-
Raineri.
In this petitioner, the ineffective assistance notice to the [it could treat not] claim counsel was available to pleading Cas- earlier as a ‘first’ habeas tro at the time he filed purposes.” his initial motion tion for Id. at 100-01. According magistrate judge, to O'Ryan surrounding post-arrest his statements filing Castro was "well aware of the circumstances to his trial and the of his motion." that in note court, we feel we must a district “that when court held petitioner is where the post-convic- cases converts sponte, acting sua future rather is ask- petition, but some other statute a second motion filed without motion or to include ing to withdraw rule into a section
or
(or
to be heard
court has
after a district
opportunity
and an
claims
notice
additional
alternative,
pleader’s informed
motion
the initial
to recharacterize
decided
ordi-
consent),
motion
agree
the recharacterized
with
we would
‘first’ habeas
as a
count
narily will not
that district
majority
the circuits
a clear
ga-
AEDPA’s
trigger
to
petition sufficient
of the conse-
prisoners
warn
courts should
Id. at 100.
requirements.”
tekeeping
provide
quences of recharacterization
amend or
opportunity to
with the
them
Circuit,
constrained,
in this
We are
v. Mil-
filings. United States
dismiss their
be-
holding
Raineri
disagree
ler,
(stating
Congress,
enact-
that
cause of our view
pleadings chal-
receipt
“upon
AEDPA, imposed
restric-
further
ing the
incarcer-
inmate’s
or
lenging an
conviction
ability to file a second
prisoner’s
on a
tions
styled as
2255 motion
Turpin, 518
Felker v.
ation —whether
petition.
no-
L.Ed.2d
should issue a
651, 664,
not—a district court
116 S.Ct.
U.S.
*5
(“The
(1996)
codifies
the effect
regarding
also
[AEDPA]
tice
limits
succes-
advise
pre-existing
should
pleadings.
some of the
of his
This notice
(1)
the
and further
restricts
have his
petitions,
that he
sive
the
can
petition-
(2)
of relief to
availability
filed;
if
mo-
as
motion ruled
ers.”). Thus,
an
if we were to relieve
have
§a
2255 motion
styled
tion
is not
from
restric-
any
of petitioners
entire class
mo-
as a 2255
recharacterized
his motion
a second motion
all on the
tion at
such,
ability
lose his
heard as
but
tion and
first motions had
their
simply because
certifica-
petitions absent
to file successive
recharacterized,
might undermine
we
been
appeals; or
with-
by
the court of
the
purpose behind
congressional
the
motion, and file one all-inclusive
draw the
limit
is to
one-year statu-
within the
being
given
Without
Adams,
F.3d at 584
period.”);
tory
by Congress on this
additional instruction
it is decided
that
least until
(holding
“[a]t
matter,
the
apply
we must
particular
or recharacteri-
such a conversion
whether
§ to successive
AEDPA restrictions
right
the movant’s
zation
affect
can
petitions
find
petition, district
future habeas
bring a
successive.2
a motion
not recharacterize
courts should
rule
other
made under some
purportedly
First
agree with the
(a)
§ 2255 unless
made under
as a motion
that
district
Circuit’s remarks
movant,
poten-
knowledge
the
with
petitioner’s one
“extinguish the
should not
of such rechar-
consequences
tial adverse
the
habeas relief under
clear chance at
acterization,
have the motion so
agrees to
petitioner’s
informed
AEDPA” without
(b)
recharacterized,
finds
the court
Raineri,
at 100.
consent.
28 U.S.C.
specified
the statute. See
an
Incidentally, Congress
made
could have
substitute our
we cannot
involving
rules
sec-
exception to
for that ex-
judgment regarding this matter
petitions for this set of cir-
ond motions and
Congress
apply the AED-
cumstances,
by
pressed
must
do so.
rule as
it did not
but
or not their
PA to all
whether
Congress applies
the board
across
written
petitions
were
recharacterized
filings, except
careful-
initial
in the two
to all second
enacted.
limited,
or after the AEDPA
are
filed before
ly
circumstances
narrow
notwithstanding
designation,
its
the motion
The decision
here is
direct conflict
Raineri,
should be considered as made under with
only
case
directly
cited
§ 2255
because
the nature of the relief
pre-AEDPA
addressing
motion that was
sought,
opportu-
and offers the movant the
motion,
“converted” to a section 2255
fol
nity to withdraw the motion rather than
post-AEDPA
lowed
section 2255 mo
recharacterized”);
have it so
see also tion. On
very
these,
facts
similar to
States,
Henderson v. United
Raineri court held that a sua sponte re-
(7th Cir.2001)
(holding that a court
ordinarily
characterization
will not count
should not deem a Rule 33 or other misla-
as a first
and remanded the case
beled motion a
2255 motion “unless the
back to the district court for consideration
movant has been warned about the conse-
of Raineri’s section 2255 motion on the
mistake”);
quences of his
United States v.
merits. See also cases involving post-
(10th
Cir.2000)
Kelly, 235 F.3d
AEDPA converted motions: Adams v.
(“[W]e hold that district courts should use
(2d Cir.1998)
United
UNITED
Plaintiff-Appellee, BAKER,
Lyndon Defendant- Burl
Appellant.
No. 01-16585
Non-Argument Calendar. Appeals,
United States Court
Eleventh Circuit.
8,May