United States v. Alton Couther, III ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALTON B. COUTHER, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:12-cr-00187-RAJ-TEM-1)
Submitted: August 24, 2021 Decided: August 27, 2021
Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Alton Bernard Couther, III, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alton B. Couther, III, appeals the district court’s order construing his pro se petition
for a writ of audita querela, pursuant to 28 U.S.C. § 1651(a), as his first 28 U.S.C. § 2255motion and dismissing it sua sponte as untimely. Because the district court did not provide
Couther with an important procedural protection, we vacate the order and remand for
further proceedings.
In Castro v. United States, 540 U.S. 375 (2003), the Supreme Court held that a court
may not recharacterize a pro se motion as the movant’s “first § 2255 motion unless the
court informs the litigant of its intent to recharacterize, warns the litigant that the
recharacterization will subject subsequent § 2255 motions to the law’s ‘second or
successive’ restrictions, and provides the litigant with an opportunity to withdraw, or to
amend, the filing.” Id. at 377. The district court did not follow the dictates of Castro here:
it did not advise Couther of its intent to recharacterize his petition as a § 2255 motion, warn
him of the ensuing consequences, or provide him with an opportunity to avoid those
consequences.
Due to this substantial notice problem, we vacate the court’s order and remand for
further proceedings. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
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