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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10168
Non-Argument Calendar
________________________
D.C. Docket Nos. 0:17-cv-62428-FAM,
0:12-cr-60049-FAM-1
ROGERIO CHAVES SCOTTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 7, 2019)
Before ED CARNES, Chief Judge, JILL PRYOR, and ANDERSON, Circuit
Judges.
PER CURIAM:
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Rogerio Chaves Scotton, a federal prisoner, has filed numerous pro se post-
conviction motions. The district court recharacterized two of those motions as
motions for post-conviction relief under 28 U.S.C. § 2255. Both times it did so
without giving Scotton the warnings required under Castro v. United States,
540
U.S. 375,
124 S. Ct. 786 (2003): It didn’t warn him that it was recharacterizing
those two motions as § 2255 motions; it didn’t warn him that this
recharacterization meant any later § 2255 motion he filed would be subject to the
restrictions on second or successive motions under § 2255(h); and it didn’t give
him an opportunity to withdraw or amend the motions before the court
recharacterized them. See
id. at 383, 124 S. Ct. at 792. So neither of those
motions can “be considered to have become a § 2255 motion for purposes of
applying to later motions the law’s second or successive restrictions.”
Id.
(quotation marks omitted); see Figuereo-Sanchez v. United States,
678 F.3d 1203,
1206 (11th Cir. 2012) (“[T]he rule in Castro [is] categorical and mandatory, and
therefore not subject to exception.”) (quotation marks omitted).
But when Scotton later filed the present pro se motion — which he
characterized as a § 2255 motion, the first time he has characterized a motion as
such — the district court treated it as a second or successive § 2255 motion and
denied it because the motion did not meet the requirements of § 2255(h). Because
Scotton’s previous motions were recharacterized without the required notice and
2
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warning, the district court erred in dismissing his present motion as an
unauthorized second or successive petition.1
VACATED AND REMANDED.
1
The government concedes that the district court erred, and the government has waived
any other arguments it may have to affirm the dismissal of Scotton’s motion on other grounds.
3
