Raymond Outler v. United States , 129 F. App'x 553 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 25, 2005
No. 04-13703 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket Nos. 04-00067-CV-1-DHB & 92-00108 CR-1-D
RAYMOND OUTLER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 25, 2005)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Federal prisoner Raymond Outler appeals the district court’s denial of his
28 U.S.C. § 2255 motion challenging his convictions and sentences. In 1995,
Outler filed a motion under Federal Rule of Criminal Procedure 33 challenging his
convictions. The district court recharacterized this motion as a § 2255 motion and
denied it. When Outler filed a § 2255 motion attacking his conviction in 2004, the
district court dismissed this motion as successive. We issued a certificate of
appealability (COA) on the following issue:
Whether the district court violated Castro v. United
States, 124 S. Ct. 786 (2003), by treating appellant's
instant 28 U.S.C. § 2255 motion as impermissibly
successive when the court construed appellant's previous
Federal Rule of Criminal Procedure 33 motion for a new
trial as appellant's “first” § 2255 motion without
informing him of the consequences of the
recharacterization or giving him the opportunity to
withdraw or amend the motion to dismiss?
Neither party has moved to expand the COA.
Outler contends that, because he did not receive notice of the district court’s
recharacterization of his 1995 motion and did not have an opportunity to amend or
withdraw it, this motion did not render his 2004 motion successive.1
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The Government argues that, because the instant § 2255 motion was untimely, the
district court’s conclusion this motion was successive was harmless error. We decline to address
this argument because it is outside of the scope of the COA. However, the Government is free to
raise the timeliness issue on remand. The district court should have the opportunity to address
this argument in the first instance and make appropriate factual findings.
2
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). Of course, for a
§ 2255 motion to be successive, the defendant must have filed a previous § 2255
motion. In Castro, the Supreme Court placed limits upon when a pro se pleading
which a district court recharactizes 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 § 2555 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 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 the district court apprised Outler of its
intention to recharacterize his 1995 motion, which was filed under Federal Rule of
Criminal Procedure 33, as a § 2255 motion. Furthermore, it does not appear
Outler was ever warned his 1995 motion would render subsequent § 2255 motions
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successive or was given an opportunity to amend or withdraw this motion.
Accordingly, the 1995 motion did not render the instant § 2255 motion successive.
Because the district court erred by dismissing Outler’s § 2255 motion as
successive, we vacate its order dismissing Outler’s motion, and remand for further
proceedings. We express no opinion on whether Outler’s motion was timely, an
issue which the district court may consider on remand.
VACATED AND REMANDED.
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