United States v. Blackstock, 513 F.3d 128, 4th Cir. (2008)
United States v. Blackstock, 513 F.3d 128, 4th Cir. (2008)
United States v. Blackstock, 513 F.3d 128, 4th Cir. (2008)
No. 05-7709
COUNSEL
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Richard Daniel Cooke, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
OPINION
TRAXLER, Circuit Judge:
We granted a certificate of appealability to permit Ian Ralph Blackstock to challenge the district courts dismissal of Blackstocks
motion under 28 U.S.C.A. 2255 as successive. We conclude that the
motion was not successive because the district court recharacterized
a previous motion filed by Blackstock as a 2255 motion without
giving Blackstock the notice required by United States v. Castro, 540
U.S. 375 (2003). Although no notice of the recharacterization would
have been required under the rules we set out in United States v.
Emmanuel, 288 F.3d 644 (4th Cir. 2002), the portion of Emmanuel
that sanctions the district courts action is inconsistent with the
Supreme Courts approach to the issue in Castro. Accordingly, we
vacate the district courts order and remand for further proceedings.
I.
Blackstock pleaded guilty to federal weapons charges in 1993. In
2001, he filed a motion seeking to require the government to produce
all documents associated with his case. Although the only relief
requested in the motion was the production of the requested information, Blackstock noted in the motion that his conviction had been
invalidated by the Supreme Courts then-recent decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000). The district court recharacterized
Blackstocks discovery motion as a petition under 28 U.S.C.A.
2255, and, because Apprendi had not been applied retroactively, the
court denied the petition on the merits. Blackstock unsuccessfully
moved for reconsideration of the order, but he did not appeal.
On appeal, Blackstock contends that while the district courts analysis might be consistent with the rules set forth in Emmanuel, it is not
consistent with the Supreme Courts approach to the issue in Castro,
which was decided after we issued our opinion in Emmanuel. We
agree.
In Castro, the Supreme Court agreed with the circuit courts to have
considered the issue that with the advent of AEDPA and its restrictions on successive petitions, limitations on a district courts power
to recharacterize a prisoners motion were needed. The Court held
that if a district court recharacterizes a prisoners motion as his first
2255 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.
Castro, 540 U.S. at 383. If the district court fails to give the required
notice, "the motion cannot be considered to have become a 2255
motion for purposes of applying to later motions the laws second or
successive restrictions." Id.
Castros requirement that notice be given before a filing is
recharacterized as a 2255 petition would appear to be inconsistent
with the exception to the notice requirement that we recognized in
Emmanuel. The government, however, contends that because Castro
involved a recharacterization that in fact worked to the detriment of
the prisoner, the Supreme Court had no opportunity to consider
whether the notice requirement should be applied in cases where the
recharacterization does not negatively affect the prisoner. The government therefore contends that Castro should not be understood as
rejecting Emmanuels exception to the notice requirement and that it
was proper for the district court to apply the Emmanuel exception. We
disagree.
In Emmanuel, we did not hold that a district courts failure to give
the required notice amounted to harmless error if the recharacteriza-
tion did not adversely affect the prisoner; we held that notice of the
recharacterization was not required if the recharacterization had no
adverse effect. See Emmanuel, 288 F.3d at 650. The Supreme Court,
however, made it clear that notice is required in all cases where the
district court treats a pro se filing as a 2255 petition, stating that a
district court "cannot . . . recharacterize a pro se litigants motion as
the litigants first 2255 motion unless the court" provides the
required notice. Castro, 540 U.S. at 377 (first emphasis added). Given
the clarity of this language, it would be improper for us to read into
the Courts flat prohibition against recharacterization absent proper
notice an unstated Emmanuel-like exception to the notice requirement, as the government urges us to do.
Moreover, as evidenced by this case, the Emmanuel exception
when applied can produce a result directly contrary to the result compelled by Castro. In Castro, the Supreme Court held that when the
required notice is not provided, the unwarned recharacterized motion
"cannot be considered to have become a 2255 motion for purposes
of applying to later motions the laws second or successive restrictions." Id. at 383. But that is precisely what happened in this case
the district court, applying the Emmanuel exception, treated the
unwarned recharacterized motion as the first 2255 petition and then
dismissed Blackstocks 2005 2255 petition as successive. If a
proper application of the Emmanuel exception (that is, an application
consistent with the rules set forth in Emmanuel) can lead to a result
that is in direct conflict with the remedy dictated by Castro, then it
is apparent that Castro and the Emmanuel exception cannot co-exist.
Accordingly, we conclude that the Supreme Courts decision in
Castro effectively overruled Emmanuels exception to the notice
requirement. Under Castro, notice was required before the recharacterization of Blackstocks 2001 discovery motion; because no notice
of the recharacterization was given, the 2001 motion cannot be
counted as Blackstocks first 2255 petition. And while we recognize
the difficultly faced by the district court when attempting to follow
the dictates of Castro and Emmanuel, it nonetheless follows from
these conclusions that the district court erred by dismissing Blackstocks 2005 2255 petition as successive.
The government contends that even if the Emmanuel exception did
not survive Castro, the district courts decision should still be
court and more than two years after the Supreme Court decided Castro, was not filed within a reasonable time. While we are inclined to
agree with the government about Blackstocks entitlement to relief
under Rule 60(b), we believe that, under Castro, any deficiencies in
Blackstocks Rule 60 motion do not foreclose his right to seek relief
on his 2255 petition.
In Castro, the district court recharacterized a prisoners filing as a
2255 petition and then denied the petition. The prisoner appealed,
but he did not challenge the district courts recharacterization of his
motion. Questions about the propriety of the recharacterization did
not arise until nearly three years later, when the prisoner filed a
2255 petition that the district court rejected as successive. See Castro, 540 U.S. at 378. Before the Supreme Court, the government
argued that the later 2255 petition was properly viewed as successive because the prisoner failed to appeal the recharacterization of the
first filing. According to the government, the failure to appeal the
recharacterization made the "recharacterization valid as a matter of
law of the case," and the valid recharacterization made the later petition successive. Id. at 383-84. The Supreme Court rejected that argument:
No Circuit that has considered whether to treat a 2255
motion as successive (based on a prior unwarned recharacterization) has found that the litigants failure to challenge
that recharacterization makes a difference. That is not surprising, for the very point of the warning is to help the pro
se litigant understand not only (1) whether he should withdraw or amend his motion, but also (2) whether he should
contest the recharacterization, say, on appeal. The "lack of
warning" prevents his making an informed judgment in
respect to the latter just as it does in respect to the former.
Indeed, an unwarned pro se litigants failure to appeal a
recharacterization simply underscores the practical importance of providing the warning. Hence, an unwarned
recharacterization cannot count as a 2255 motion for purposes of the "second or successive" provision, whether the
unwarned pro se litigant does, or does not, take an appeal.