United States Fourth Circuit

Dismissal of motion under 28 U.S.C. section 2255 as successive is vacated where: 1) the district court recharacterized a previous motion filed by defendant as a section 2255 motion without giving him the notice required by US v. Castro, 540 U.S. 375 (2003); and 2) although no notice of the recharacterization would have been required under the rules set out in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), the portion of Emmanuel that sanctions the district court's action is inconsistent with the Supreme Court's approach to the issue in Castro.

Appellate Information

• Decided 01/09/2008
• Published 01/09/2008

Judges

• Before TRAXLER and SHEDD, Circuit Judges, and NORMAN K. MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Court

• United States Fourth Circuit

Counsel

• For Appellees:
  
• 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, Richmond, Virginia, for Appellee.   ON BRIEF:  Mitchell A. Mosvick, Third Year Law Student, University of Virginia School of Law, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant.  Chuck Rosenberg, United States Attorney, James Strawley, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.