FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 17, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-14711

Non-Argument Calendar

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D. C. Docket No. 03-00108-CR-2-RBP-RRA

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SAMUEL WALKER, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(February 17, 2006)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Samuel Walker, a federal prisoner proceeding pro se, appeals the district
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court’s denial of his “Motion to Correct Unlawful Sentence.” The government

argues on appeal that the district court could only assume jurisdiction over

Walker’s motion by construing it as a motion pursuant to 28 U.S.C. § 2255, but

that it failed to do so, and, therefore, did not have jurisdiction. Alternatively, the

government argues that if the motion was considered as a § 2255 motion, we lack

jurisdiction because Walker did not obtain a certificate of appealability (“COA”). 

Because we accept both of the government’s arguments, we do not address the

substantive issues.

Federal courts 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). Doing so may allow a court to avoid an unnecessary

dismissal or inappropriately stringent application of formal labeling requirements,

or to create a better correspondence between the substance of the motion and its

underlying legal basis. See Castro v. United States, 540 U.S. 375, 381-82, 124 S.

Ct. 786, 791-92, 157 L. Ed. 2d 778 (2003). When a district court recharacterizes a

pro se motion as an initial § 2255 motion, it must notify the movant of the intended

recharacterization, advise him of the consequences of such recharacterization, and

provide an opportunity for the motion to be withdrawn or amended. Id. at 383, 124
The district court’s order merely stated: “The Motion to Correct Unlawful Sentence filed 1

by the defendant, Samuel Walker on January 8, 2005 is DENIED. The court reiterates that it is

of the opinion that the sentence is too harsh. However, the court has no authority to reduce it.”

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S. Ct. at 792. If the district court fails to do so, the motion cannot be considered as

an initial § 2255 motion for purposes of determining whether a subsequent § 2255

motion is second or successive. Id. 

A COA must be issued in order for an applicant to appeal a final order in a

proceeding under § 2255. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). “If an

applicant files a notice of appeal, the district judge who rendered the judgment

must either issue a certificate of appealability or state why a certificate should not

issue.” Fed. R. App. P. 22(b)(1). We require district courts to treat a notice of

appeal of a § 2255 motion as an application for a COA, and we also require the

district court to rule upon an application for a COA before we will consider such a

request. Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997) (per

curiam).

Because the district court denied Walker’s motion without explaining the

source of its jurisdiction or the basis on which it made its decision, we do not know

whether the district court construed Walker’s motion as a § 2255 motion or

whether it denied the motion on the basis of some other authority. We therefore 1

vacate the district court’s order and remand this case to the district court for further
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proceedings. On remand, the district court should either state that it is construing

Walker’s motion as a § 2255 motion, give Walker the Castro warnings, and

construe any subsequent notice of appeal as an application for a COA, or, if it

chooses not to proceed under § 2255, either (1) explain the basis for its

jurisdiction, or (2) dismiss Walker’s motion for lack of jurisdiction. 

VACATED AND REMANDED.