# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-40382

____________ United States of America, Plaintiff—Appellee ,

versus Osazuwa Peter Okunoghae, Defendant—Appellant

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______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:19-CR-3-1

______________________________ Before Davis, Southwick, and Duncan Circuit Judges

. Per Curiam: * Over a year after being sentenced, th e Defendant filed a motion in the form of a letter to the district court. In it, he requested the court “to help me with an APPELLATE ATTORNEY, as I wa nt to appeal my case as soon as [he] can under 2255 or any other remed y.” The Government argued that the district court should recharacterize th e filing as a motion under 28 U.S.C. § 2255. The district court did so, then denied the motion as untimely. On

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 15, 2024 Lyle W. Cayce Clerk Case: 23-40382 Document: 90-1 Page: 1 Date Filed: 07/15/2024No. 23-40382

2 appeal, the Government argues the distri ct court should not have accepted its suggestion, and that in fact no motion under Section 2255 has yet been filed. For reasons other than those urged by the Government, we VACATE and REMAND

. In November 2019, Osazuwa “Peter ” Okunoghae pled guilty in the United States District Court for the Ea stern District of Texas to one count of conspiracy to commit money launde ring in violation of 18 U.S.C. § 1956(h). Sentencing occurred two years later, with most of the delay caused by Okunoghae’s ongoing cooper ation with the Government that led to the prosecution of seve ral members of a related money laundering scheme. According to the Government, the alleged scheme and Okunoghae’s involvement were tied to fraudulent tax filings originating in Nigeria, Okunoghae’s home country. In ex change for his cooperation, the Government promised to file a moti on for a downward departure in his conspiracy sentence under U.S.S.G. § 5K1.1 or a motion for a reduction of sentence under Federal Rule of Criminal Procedure 35(b). Okunoghae was sentenced in Ja nuary 2022 to 78 months of imprisonment and three years of superv ised release. The Government did not file a Section 5K1.1 motion because it concluded Okunoghae’s cooperation was incomplete. All guilty pleas for the other individuals in the related scheme were entered by Febr uary 2023. The next month, the Government filed a Rule 35(b) motion based on Okunoghae’s assistance. Three days later, the district cour t granted the motion and reduced the sentence to 48 months. Okunoghae has insisted througho ut these proceedings that the Government also promised him assistan ce in securing an S visa to avoid deportation to Nigeria where he claims his life would be in danger because of his cooperation with the United States Government. See 8 U.S.C. Case: 23-40382 Document: 90-1 Page: 2 Date Filed: 07/15/2024No. 23-40382

3 § 1101(a)(15)(S). Accordin g to Okunoghae, deportation to Nigeria would be a “death penalty,” and he never would have pled guilty without a promise of an S visa. He further alleged his retained attorney assured him the Government would secure the visa and the commitment need not be in writing. After sentencing, Okunogha e says his court-appointed attorney persuaded him not to appeal so the Government would file the Rule 35(b) motion based on his assist ance. The attorney allege dly told him that after a new Rule 35(b) sentence, he could do a “2255 appeal which is not time barred.” The Government in the current proceedings has not stated whether there were any promises relating to a visa. In May 2023, Okunoghae, proceeding pro se , sent the previously mentioned letter to the district court seeking “an APPELLATE ATTORNEY” so he could appeal hi s case “under 2255 or any other remedy.” He allegedly discovered th e Government would not assist him in obtaining an S visa only when it infor med his immigration attorney in March 2023 that no such promise had been made. In district court, the Government t ook the position that the letter was a motion to permit the filing of a late Section 2255 motion, then urged that it be denied as untimely. The motion purportedly was untimely because it needed to be filed within one year after his original sentencing, and Okunoghae failed to demonstrate a basis to toll the deadline. The district court agreed with the Government’s arguments and denied the motion. Okunoghae timely appealed and is now represented by counsel. Okunoghae argues the district court lacked jurisdiction to decide the timeliness of any Section 2255 motion because he did not file one. Instead, he argues he filed a motion for ap pointment of counsel under 18 U.S.C. § 3006A(a)(2)(B). In an unexplaine d reversal of position, the Government now agrees. Though the parties on appe al agree the district court erred, we Case: 23-40382 Document: 90-1 Page: 3 Date Filed: 07/15/2024No. 23-40382

4 still must conduct our own re view and determine if reve rsable error occurred. United States v. McLauling , 753 F.3d 557, 559 n.2 (5th Cir 2014). A district court has authority to recast a pro se litigant’s court filing “to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requ irements, or to create a better correspondence betwee n the substance of a pro se motion’s claim and its underlying legal basis.” Castro v. United States , 540 U.S. 375, 381–82 (2003) (citations omitted). We review a distri ct court’s decision to recharacterize a pro se litigant’s filing for ab use of discretion. United States v. Elam , 930 F.3d 406, 409 (5th Cir. 2019). Review for abuse of discretion also applies to the denial of a motion for appointed counsel. United States v. Nichols , 30 F.3d 35, 36 (5th Cir. 1994). There are limits to the practice, thou gh. Recharacteri zing a filing as one under Section 2255 should not occu r “unless the court first warns the pro se litigant about the consequences of the recharacterization, thereby giving the litigant an opportunity to contest the recharacterization, or to withdraw or amend the motion.” Castro , 540 U.S. at 382. The key consequence is that labeling a filing as one under Section 2255 may “make it significantly more difficult for that litigant to file another such motion.” 1 Id.
It was not unreasonable for the di strict court to look beyond the characterization of the letter, which was properly considered a motion, and conclude that the request for counsel was for the pu rpose of filing for further review through a Section 2255 proceeding. If a Section 2255 motion must be filed first (which we do not decide), but only a request for counsel is made,

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1 Several panels of this court have held that failure to warn a pro se litigant as Castro requires is not reversible error; the recharac terized filing, though, cannot count as a Section 2255 filing for the bar on “sec ond or successive” motions. Ortiz-Lopez v. Fed. Bureau of Prisons , 830 F. App’x 127, 131–32 (5th Cir. 20 20) (citing two other unpublished opinions). Case: 23-40382 Document: 90-1 Page: 4 Date Filed: 07/15/2024No. 23-40382

5 the motion for counsel could have been dismissed for lack of jurisdiction. See United States v. Callahan , 70 F. App’x 179 (5th Cir. 2003). The district court concluded that this was a motion for pe rmission to file an out-of-time Section 2255 motion, then rejected it as un timely and because Okunoghae had made no arguments about equitable tolling or any other reason to overcome the untimeliness. Our following discussion identifies arguments explaining the delay, though, and they shou ld have been considered. The statute allowing appointment of counsel in general terms requires a decision on whether “the interests of justice” justify counsel. 18 U.S.C. § 3006A(a)(2). Okunoghae’s filing pres ents significant allegations of the Government’s alleged promise to assi st him in obtaining an S visa in exchange for his assistance in other money-laundering cases; the time, place, and identities of the government official s that allegedly made the promises (immigration agents and assistant U.S. attorneys); and the identity of a witness to the promise (his attorney). See United States v. Cervantes , 132 F.3d 1106, 1110 (5th Cir. 1998). The allega tions are consistent with Okunoghae’s conduct in the years before sentencing, as evidenced by the numerous letters sent to the district court requesting court-appointed counsel and his allocution statements. He also alle ges his court-appointed attorney was ineffective in advising him not to file a direct appeal but instead to wait for the Government’s Rule 35(b) motion and he could “do a 2255 appeal” later because it “is not time barred.” Lastly , Okunoghae’s filing alleges he only discovered the visa promise was disputed when his immigration attorney told him in March 2023 that an assistant U.S. attorney in Alabama denied that a promise was ever made. The Government in these proceedings has been silent about the validity of the claim about a promise to as sist Okunoghae in acquiring a visa. The Government does concede that the a llegations deserve a closer look. At least two other panels of this cour t concluded that the Government’s Case: 23-40382 Document: 90-1 Page: 5 Date Filed: 07/15/2024No. 23-40382

6 changing of position on appeal raises questions ab out the fairness of the ruling being appealed. See United States v. Valdez , 696 F. App’x 675, 681 (5th Cir. 2017) (citing United States v. Torres , 856 F.3d 1095, 1100 (5th Cir. 2017)). The district court needs to address these allegations in deciding both whether equitable tolling or Section 22 55(f)(4) should apply and whether the interests of justice require appointment of counsel. VACATED and REMANDED

. Case: 23-40382 Document: 90-1 Page: 6 Date Filed: 07/15/2024