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:

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