United States v. Heijnen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIUS HEIJNEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:03-cr-00045-GRA-6; 8:09-cv-70038-GRA)
Submitted: January 25, 2010 Decided: March 10, 2010
Before WILKINSON, KING, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Antonius Heijnen, Appellant Pro Se. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonius Heijnen seeks to appeal the district court’s
order recharacterizing his petition for a writ of error coram
nobis as a 28 U.S.C.A. § 2255 (West Supp. 2009) motion and
dismissing it as untimely. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
Although we find baseless Heijnen’s argument that
§ 2255 is not a valid statute, our review of the record reveals
that the district court failed to give Heijnen notice of its
intent to recharacterize his coram nobis petition as a § 2255
motion, as required by the Supreme Court’s decision in Castro v.
United States, 540 U.S. 375, 383 (2003). Accordingly, we grant
a certificate of appealability on Heijnen’s claim that the
district court erred in recharacterizing his petition without
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notice, vacate the district court’s order, and remand for
further proceedings. On remand, the district court should also
consider whether notice pursuant to Hill v. Braxton, 277 F.3d
701, 707 (4th Cir. 2002), is required. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
VACATED AND REMANDED
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