Hernan O'Ryan Castro v. United States , 277 F.3d 1300 ( 2002 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 02, 2002
No. 01-12181 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00097-CV-4
HERNAN O’RYAN CASTRO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 2, 2002)
Before WILSON, RONEY and FAY, Circuit Judges.
WILSON, Circuit Judge:
Hernan O’Ryan Castro appeals the district court’s dismissal of his habeas
corpus petition, which was filed pursuant to 28 U.S.C § 2255. The district court
concluded that the petition was successive under § 2255, as amended by the 1996
Antiterrorism and Effective Death Penalty Act (AEDPA), and thus not entitled to
consideration. The dismissal of O’Ryan Castro’s petition raises an issue of first
impression in this Circuit: when a district court recharacterizes a federal prisoner’s
postconviction motion as a petition under § 2255, does that render the prisoner’s
subsequent attempt to file a § 2255 petition a “second or successive petition”
within the purview of AEDPA amendments? Finding some of the opinions of our
sister circuits who have considered this issue to be persuasive, we hold that
O’Ryan Castro’s subsequent § 2255 petition cannot be deemed successive.
I. BACKGROUND
In 1992, O’Ryan Castro was convicted and sentenced to twenty years of
imprisonment for conspiracy to possess with the intent to distribute cocaine in
violation of 21 U.S.C. § 846, possession with the intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1), and conspiracy to import cocaine in violation of
21 U.S.C. § 963. We affirmed the convictions and sentence on March 24, 1994.
On July 11, 1994, O’Ryan Castro filed a pro se Motion For New Trial pursuant to
Federal Rule of Criminal Procedure 33 based upon newly discovered evidence.
The evidence consisted of proof that a witness, who testified against him at trial,
had entered into an immunity agreement with the government. The government
submitted a response in which it stated that it did not object to the motion as
2
demanding relief under both Rule 33 and § 2255. O’Ryan Castro then filed a pro
se reply in which he explained that he had filed his motion properly under Rule 33.
The district court treated O’Ryan Castro’s motion as requesting relief pursuant to
both Rule 33 and § 2255 and denied it on October 28, 1994. We affirmed the
district court’s ruling.
On April 22, 1997, O’Ryan Castro filed his first self-styled § 2255 habeas
petition, alleging, among other things, that he failed to receive effective assistance
of counsel in violation of the Sixth Amendment. The district court denied this
petition and O’Ryan Castro appealed. After granting a certificate of appealability
on the ineffective assistance claim, we vacated the order denying his petition and
remanded the matter for further evidentiary determinations. We also instructed the
district court to examine the record to determine whether O’Ryan Castro’s petition
was successive. The district court concluded that the petition was successive and
dismissed it due to his failure to meet the particular requirements imposed by the
amendments to § 2255 regarding successive petitions.
II. STANDARD OF REVIEW
“We review de novo a district court's denial of habeas corpus relief.”
Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001). “A district court's
factual findings in a habeas corpus proceeding are reviewed for clear error.” Id.
3
III. DISCUSSION
Due to the frequency in which pro se litigants draft incognizable motions,
“[f]ederal courts have long recognized that they have an obligation to look behind
the label of a motion filed by a pro se inmate and determine whether the motion is,
in effect, cognizable under a different remedial statutory framework.” United
States v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990). This accommodation was
the result of the time-honored practice of construing pro se plaintiffs’ pleadings
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). In
accordance with this practice, “district courts routinely convert postconviction
motions of prisoners who unsuccessfully seek relief under some other provision of
law into motions made under . . . § 2255 and proceeded to determine whether the
prisoner was entitled to relief under that statute.” Adams v. United States, 155 F.3d
582, 583 (2d Cir. 1998) (per curiam). These conversions were justified because
they were harmless and they also assisted prisoner-movants in dealing with legal
technicalities that might otherwise preclude prompt adjudication of their claims.
Id. “Several courts of appeals . . . have endorsed this approach as fair and
efficient.” United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999).
On April 24, 1996, however, the AEDPA took effect and significantly
altered the innocuousness of liberally recharacterizing a petitioner’s postconviction
4
motion. The AEDPA, which amended § 2255, bars federal prisoners from
attacking their convictions through successive habeas corpus petitions except in
very limited circumstances.1 Specifically, successive applications may be heard
only after an appellate court certifies the petition, because it contains “(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. “If a district
court receiving a motion under some other provision 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” successive. Adams, 155 F.3d at
583. Consequently, a “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.” Id. at 583–84.
1
“A ‘successive petition’ raises grounds identical to those raised and rejected on the
merits on a prior petition.” Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986). A petitioner
abuses the writ when he “files a petition raising grounds that were available but not relied upon
in a prior petition.” Id.
5
O’Ryan Castro filed his initial Rule 33 motion2 prior to the enactment of the
AEDPA and his subsequent § 2255 petition after the AEDPA became effective.
Despite the fact that O’Ryan Castro filed his Rule 33 motion before the AEDPA’s
effective date, it nonetheless has the capacity to trigger the procedural strictures
that the AEDPA attaches to successive habeas petitions. See Raineri v. United
States, 233 F.3d 96, 99 (1st Cir. 2000). This raises the question of whether the
district court properly considered O’Ryan Castro’s Rule 33 motion as his first §
2255 petition, making his subsequent § 2255 petition successive.
Several circuits have prescribed specific guidelines for construing a
claimant’s self-styled § 2255 petition when a district court has recharacterized a
claimant’s prior postconviction motion as a § 2255 petition. The First Circuit, in
particular, decided a case that is strikingly similar to the present case. The
petitioner in Raineri, like O’Ryan Castro, brought a “Motion for Correction of
Sentence and/or New Trial” pursuant to Federal Rule of Criminal Procedure 35
and/or Rule 33 prior to the AEDPA’s effective date. Id. at 98. The district court,
acting sua sponte, found Rules 33 and 35 inapplicable and recharacterized the
motion as an application for relief under § 2255. Id. The petitioner submitted a
subsequent motion styled as a § 2255 petition that the district court deemed
2
The district court converted this motion into a § 2255 petition.
6
successive and thus dismissed for his failure to obtain the requisite authorization to
proceed with a successive petition. Id. at 99. In reversing this dismissal, the First
Circuit concluded that “because the court acted sua sponte and without any
advance notice to the petitioner, [it could not] treat the earlier pleading as a ‘first’
habeas petition for AEDPA purposes.” Id. at 100-01. In reaching this decision, the
First Circuit, persuaded by holdings of the Second and Third Circuits in prior
cases, gave due consideration to the importance of protecting a claimant’s right to
habeas review. Id. at 99–101.
Two years before the First Circuit decided Raineri, the Second Circuit held,
At least until it is decided whether such a conversion or
recharacterization can affect the movant’s right to bring a future
habeas petition, district courts should not recharacterize a motion
purportedly made under some other rule as a motion made under
§ 2255 unless (a) the movant, with knowledge of the potential
adverse consequences of such recharacterization, agrees to have
the motion so recharacterized, or (b) the court finds that,
notwithstanding its designation, the motion should be considered
as made under § 2255 because of the nature of the relief sought,
and offers the movant the opportunity to withdraw the motion
rather than have it so recharacterized.
Adams, 155 F.3d at 584. Similarly, the Third Circuit, “conclude[d] that district
courts should discontinue their practice of automatically treating pro se,
postconviction motions as § 2255 petitions.” United States v. Miller, 197 F.3d
7
644, 652 (3d Cir. 1999). The Third Circuit, however, went a step further than the
procedure announced by the Second Circuit, stating that
upon receipt of pro se pleadings challenging an inmate's conviction
or incarceration--whether styled as a § 2255 motion or not--a district
court should issue a notice to the petitioner regarding the effect of
his pleadings. This notice should advise the petitioner that he can
(1) have his motion ruled upon as filed; (2) if his motion is not
styled as a § 2255 motion have his motion recharacterized as a § 2255
motion and heard as such, but lose his ability to file successive petitions
absent certification by the court of appeals; or (3) withdraw the motion,
and file one all-inclusive § 2255 petition within the one-year statutory
period.
Id. It also held that this rule was narrow and would apply prospectively – meaning
that “a pro se petitioner who filed a pre-AEDPA pleading, which was recast as a §
2255 motion, is bound by the existing provisions of AEDPA regarding successive
second or successive petitions.” Id.3
In addition to the First Circuit, the Seventh, Ninth, and Tenth Circuits have
adopted the views expressed by the Second and Third Circuits. See Henderson v.
United States, 264 F.3d 709, 711 (7th Cir. 2001) (holding that a court should not
deem a Rule 33 or other mislabeled motion a § 2255 motion “unless the movant
has been warned about the consequences of his mistake”); United States v. Kelly,
235 F.3d 1238, 1242 (10th Cir. 2000) (“[w]e hold that district courts should use the
3
We should note that the petitioners in both Adams and Miller filed their initial
postconviction motions after the effective date of the AEDPA. Adams, 155 F.3d at 582–83;
Miller, 197 F.3d 652–53.
8
procedure adopted in Adams for dealing with pro se postconviction motions not
expressly made under § 2255 . . . .”); United States v. Seesing, 234 F.3d 456, 464
(9th Cir. 2000) (adopting the procedure set forth in Adams to address
circumstances where a court is presented with a pro se motion that could be
recharacterized as a § 2255 motion).
Only one circuit has taken an opposite approach on this issue. In In re
Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (per curiam), which was the first case to
address this issue, the Fifth Circuit upheld the district court’s unilateral
recharacterization of the petitioner’s previous pro se motion as a § 2255 motion
and held that, because the petitioner had filed such a motion, any subsequent §
2255 motion he filed required certification by a court of appeals. The court also
determined that despite the petitioner’s objection to the district court’s conversion
of his initial postconviction motion, the motion was incapable of being construed
as anything other than a § 2255 motion. Id. In discussing Tolliver, the Third
Circuit noted that the case “was decided two years before Adams and almost
immediately after AEDPA’s enactment.” Miller, 197 F.3d at 651. It opined that
the Fifth Circuit may have decided the case differently if it had the benefit of the
Second Circuit’s discussion. Id. We find this assertion remarkably plausible,
9
because we certainly are persuaded by the courts that have discussed this issue
since Tolliver.
Unlike the petitioner in Tolliver, O’Ryan Castro’s Rule 33 motion for a new
trial asserted a cognizable ground for relief. The motion was based upon alleged
new evidence, which Rule 33 explicitly provides as a basis for bringing such a
motion. See United States v. Kersey, 130 F.3d 1463, 1465 n.2 (11th Cir. 1997). In
response to the government’s motion, the district court considered the motion as
requesting relief under both Rule 33 and § 2255. Thus, also unlike Adams, Miller,
and Raineri, the district court acted on the government’s motion, and not sua
sponte. This, however, is a distinction without a difference. The more critical
factor is whether O’Ryan Castro knew the consequences of the district court’s
actions; and much the same as the litigants in Adams, Miller, Henderson, and
Raineri, there was no protocol in place to ensure that O’Ryan Castro had such
knowledge. Because O’Ryan Castro filed his initial postconviction motion pre-
AEDPA, it is inconceivable that he, or any pro se litigant during that time, could
have foreseen the ultimate consequences of a district court’s recharacterization (sua
sponte or upon the government’s motion) of his postconviction motion. When the
district court recharacterized his Rule 33 motion, O’Ryan Castro made the effort to
reply in a manner that reaffirmed his intent to move for a new trial under that rule
10
rather than seek habeas relief. It is therefore probable, not just possible, to
conclude that he would have mounted a much stronger campaign to defeat the
district court’s recasting of his Rule 33 motion if he was aware that his subsequent
§ 2255 petition would face nearly insurmountable scrutiny.
In sum, we join the majority of circuits that have addressed this issue.
Whether a petitioner’s initial postconviction motion was filed before or after the
AEDPA’s effective date or whether the district court’s recharacterization of that
motion was sua sponte or upon the government’s motion, a district court’s
recharacterization of a petitioner’s initial postconviction motion will not be
considered a “first” habeas petition for AEDPA purposes unless the petitioner is
given notice of the consequences of such recharacterization. Requiring a district
court to ensure that a petitioner realizes the ramifications of a court’s decision to
convert his postconviction motion is an appropriate means of apprizing all
defendants of the circumstances that may impair or preserve their right to habeas
review. We do not endeavor to burden the district courts with onerous disclosure
requirements. As long as a petitioner is not blindsided by having to meet the new
criteria in § 2255 for successive petitions, the district court’s obligation is satisfied.
IV. CONCLUSION
11
The district court’s dismissal of O’Ryan Castro’s § 2255 petition is hereby
VACATED. We find that O’Ryan Castro’s § 2255 petition is not successive and
REMAND this case to the district court to consider the merits of his petition.
VACATED and REMANDED.
12