OCTOBER TERM, 2003
certiorari to the united states court of appeals for the eleventh circuit
No. 02-6683. Argued October 15, 2003—Decided December 15, 2003
In 1994, petitioner Castro attacked his federal drug conviction in a pro se motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. The Government responded that the claims were more cognizable as federal habeas claims under 28 U. S. C. § 2255. The District Court denied Castro's motion on the merits, referring to it as both a Rule 33 and a § 2255 motion. Castro did not challenge this recharacterization of his motion on his pro se appeal, and the Eleventh Circuit summarily affirmed. In 1997, Castro, again pro se, filed a § 2255 motion raising, inter alia, a new claim for ineffective assistance of counsel. The District Court denied the motion, but the Eleventh Circuit remanded for the District Court to consider, among other things, whether this was Castro's second § 2255 motion. The District Court appointed counsel, determined that the 1997 motion was indeed Castro's second § 2255 motion (the 1994 motion being his first), and dismissed the motion for failure to comply with § 2255's requirement that Castro obtain the Court of Appeals' permission to file a "second or successive" motion. The Eleventh Circuit affirmed.
Held: 1. This Court's review of Castro's claim is not barred by the requirement that the "grant or denial of an authorization by a court of appeals to file a second or successive application . . . shall not be the subject of a [certiorari] petition," 28 U. S. C. § 2244(b)(3)(E). Castro nowhere asked the Eleventh Circuit to grant, and it nowhere denied, such authorization. Contrary to the Government's position, the court's statement that Castro's petition could not meet the requirements for second or successive petitions cannot be taken as a statutorily relevant "denial" of an authorization request not made. Even accepting the Government's characterization, the argument would founder because the certiorari petition's "subject" is not the Eleventh Circuit's authorization "denial," but the lower courts' refusal to recognize that this § 2255 motion is Castro's first. Moreover, reading the statute as the Government suggests would create procedural anomalies, allowing review where the lower court decision disfavors, but denying review where it favors, the Government; would close this Court's doors to a class of habeas petitioners without any clear indication that such was Congress' intent; and
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