FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 25, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-13703

Non-Argument Calendar

________________________

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:
 The Government argues that, because the instant § 2255 motion was untimely, the 1

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

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
3

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
4

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.