United States v. Luis Alberto Camejo-Rodriguez , 413 F. App'x 158 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14684 ELEVENTH CIRCUIT
FEBRUARY 4, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 92-00571-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO CAMEJO-RODRIGUEZ,
a.k.a. Luis Alberto Camacho,
a.k.a. Cejas,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 4, 2011)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
Luis Camejo-Rodriguez seeks relief from his 1995 guilty plea to various
cocaine and firearm offenses. In the instant appeal, he argues that the document he
filed on September 11, 2009, entitled “Notice of Appeal Rule 4(a) of Federal Rules
of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful
Conviction,” is an application to this Court for an order authorizing him to file a
second or successive habeas petition. We conclude that Camejo-Rodriguez does
not need such an order because the district court failed to properly notify him of
the consequences of re-characterizing an earlier motion as his first § 2255 habeas
petition, as required by Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786,
792 (2003). Therefore, Camejo-Rodriguez is entitled to file a habeas petition that
is not subject to the restrictions placed on second or successive petitions.
I.
In 1995, Camejo-Rodriguez pleaded guilty to various drug and firearm
crimes. Initially, he appealed his conviction, but subsequently filed a motion to
dismiss, which this Court granted. Camejo-Rodriguez then filed a disjointed and
unintelligible motion with the district court in 2000. The district court construed
the motion as a habeas petition and instructed him to file an amended motion
challenging his conviction on the appropriate § 2255 form. However, the district
court did not advise Camejo-Rodriguez that filing a § 2255 petition would
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substantially restrict his ability to file a future petition. Eventually, he complied
with the district court’s instructions and filed the petition on the appropriate form
on March 2, 2001 (“2001 Motion”). Six months later, the magistrate judge filed a
report and recommendation concluding that the petition was time-barred, as it was
filed outside of the statute of limitations. The district court followed the
recommendation and dismissed the petition.
Since that initial re-characterization and denial, Camejo-Rodriguez has filed
several motions both in the district court and in this Court. He submitted six
motions to the district court, including filings in March of 2005 and November of
2006, which the district court interpreted as second or successive § 2255 petitions
and, accordingly, denied. He also filed three separate notices of direct appeal in
this Court, which we dismissed, sua sponte, for lack of jurisdiction, because the
notice was not filed within ten days of the 1996 judgment. On September 11,
2009, Camejo-Rodriguez filed yet another document in this Court. We granted
him in forma pauperis status and appointed counsel. Counsel filed this appeal,
essentially contending that none of Camejo-Rodriguez’s prior motions filed in
district court after the 2001 Motion should have been dismissed as second or
successive habeas petitions, because the district court failed to notify him of the
consequences of re-characterizing his 2001 Motion.
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II.
Criminal defendants may not submit a second or successive § 2255 petition
unless the appropriate court of appeals grants the defendant leave to file. 28 U.S.C.
§ 2244(b)(3). Undoubtedly, the conclusion that a habeas petition is a “second or
successive” petition requires the existence of a first. A pro se filing that is re-
characterized by the district court as a § 2255 petition cannot be considered a
defendant’s first habeas petition—triggering the Antiterrorism and Effective Death
Penalty Act’s (“AEDPA”) restrictions on second or successive habeas
petitions—unless the district court: (1) notifies the defendant of the re-
characterization; (2) warns the defendant of the restrictions placed on second or
successive petitions; and (3) provides the defendant with the opportunity to
withdraw the motion or amend it to include all claims that he believes entitle him
to relief. Castro, 540 U.S. at 383, 124 S. Ct. at 792. If the district court fails to
conform with any of the three requirements, the original filing “cannot be
considered to have become a § 2255 motion for purposes of applying to later
motions the law’s ‘second or successive’ restrictions.” Id.
III.
The government concedes that the district court failed to properly warn
Camejo-Rodriguez of the consequences of re-characterizing his 2001 Motion. It
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argues, however, that we must decide that the Supreme Court’s ruling in Castro
applies retroactively in order for Camejo-Rodriguez to be entitled to file a future
petition that is not subject to AEDPA’s restrictions on second or successive § 2255
petitions. We disagree. This Court has held that pre-Castro re-characterizations—
without proper notice and warning—render post-Castro habeas petitions not
successive.1 We need not decide that Castro applies retroactively because we are
not invalidating the previous re-characterization by the district court, but rather
determining what effect that re-characterization is given when a later § 2255
motion is filed.2 In cases where the district court failed to give all required
warnings, the re-characterized motion is simply not considered a § 2255 motion for
purposes of triggering the law’s restrictions on second or successive petitions.
Here, the district court did not warn Camejo-Rodriguez that subsequent § 2255
petitions would be subject to the limitations on second and successive habeas
1
See Fullwood v. Wiley, 180 Fed. App’x 900, 901 (11th Cir. 2006) (holding that the
district court erred by dismissing defendant’s 2004 motion as successive after the district court
re-characterized his 2000 motion without giving the defendant the notice required by Castro);
Outler v. United States, 129 Fed. App’x 553, 554 (11th Cir. 2005) (declaring that the district
court erred in dismissing defendant’s 2004 motion as successive when it re-characterized his
1995 motion without giving Castro warnings).
2
See, e.g., United States v. Blackstock, 513 F.3d 128, 134 (4th Cir. 2008) (“Castro does
not invalidate prior unwarned recharacterizations of pro se filings, but instead establishes a rule
governing the effect that will be given those unwarned recharacterizations in the future, when a
subsequent § 2255 petition is filed. . . . Our conclusion that [defendant’s] 2005 § 2255 petition
was not successive is simply the result of applying the law in existence in 2005, when that
petition was filed.”)
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petitions created by the AEDPA amendments. Therefore, his 2001 Motion should
not be considered a § 2255 petition requiring the district court to dismiss his post-
Castro motions as successive.
Accordingly, we must vacate the district court’s orders denying Camejo-
Rodriguez’s prior motions as second or successive. Should he choose, we afford
him the opportunity to file a § 2255 petition not subject to the restrictions placed
on second or successive petitions by the AEDPA amendments. We express no
opinion on whether it would comply with the statute of limitations. If Camejo-
Rodriguez indeed files a § 2255 petition, the district court should consider whether
it is time-barred.3
The previous dismissals are VACATED and the case is REMANDED for
proceedings consistent with this opinion.
3
The government argues that Camejo-Rodriguez cannot currently file a habeas petition
that complies with the statute of limitations created by § 2255(f). It believes, therefore, that we
should not give Camejo-Rodriguez the opportunity to file a future § 2255 petition, as it will
necessarily be untimely as well. Our precedent forecloses such a conclusion. See Gooden v.
United States, 11th Cir. 2010, __ F.3d __, (No. 09-10499, Dec. 8, 2010). In Gooden, we
expressly articulated what should already have been clear: while a petition might currently be
time-barred by § 2255(f), “future events [can] re-start the statute of limitations period.” Id. at 2.
The Court rejected the government’s argument that “failure to provide [Castro] notice would not
adversely affect the pro se litigant because all subsequent § 2255 motions—even if not barred as
second or successive—would necessarily be untimely as well.” Therefore, even if we accept the
government’s conclusion that any § 2255 motion filed today by Camejo-Rodriguez would be
time-barred, it does not follow that any future petition would suffer the same fate.
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