The opinion
USCA11 Case: 22-10016 Document: 36-1 Date Filed: 05/02/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10016
Non-Argument Calendar
____________________
DARIUS TAUREAN CALDWELL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-02884-MHC
____________________
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2 Opinion of the Court 22-10016
Before WILSON, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
In April 2018, a jury convicted Darius Taurean Caldwell on
multiple counts stemming from an armed bank robbery. The dis-
trict court sentenced him to a total of 384 months and one day of
imprisonment. This court affirmed Caldwell’s conviction and sen-
tence in June 2020, see United States v. Caldwell, 963 F.3d 1067 (11th
Cir. 2020), and the Supreme Court denied his petition for a writ of
certiorari in November 2020, see Caldwell v. United States, No. 20-
5957, 141 S. Ct. 836 (2020).
In February 2021, Caldwell filed a pro se 28 U.S.C. § 2255 mo-
tion, asserting four grounds for relief. In May 2021, following the
government’s response, Caldwell filed a motion to withdraw that
motion, which the district court granted. A few weeks later, in
June, Caldwell submitted a series of motions requesting the ap-
pointment of counsel and identifying perceived reasons for a sen-
tence reduction. The district court construed Caldwell’s first sub-
mission in this series as both a request for counsel and a motion to
vacate his sentence under § 2255 (the “June Motion”). In doing so,
the court did not provide all the warnings required by Castro v.
United States, 540 U.S. 375, 383 (2003). The government responded
in early August, and a month later, the magistrate judge issued a
Report and Recommendation (R&R), which recommended deny-
ing Caldwell’s June Motion.
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22-10016 Opinion of the Court 3
In October 2021, prior to the district court ruling on the June
Motion, Caldwell filed another pro se motion to vacate, set aside, or
correct his sentence under § 2255 (the “October Motion”). The dis-
trict court ordered the government to respond.
Then, in November 2021, the district court adopted the mag-
istrate judge’s R&R and denied Caldwell’s June Motion. Subse-
quently, the government moved to dismiss the October Motion as
an impermissible second or successive motion under 28 U.S.C.
§ 2255(h).
In December 2021, Caldwell filed a motion for a certificate
of appealability for the denial of his June Motion. In March 2022,
after clearing up jurisdictional concerns, this court granted the cer-
tificate on the following issue:
Whether the district court erred by recharacterizing
Mr. Caldwell’s first motion for appointment of coun-
sel as a 28 U.S.C. § 2255 motion to vacate, without
considering Mr. Caldwell’s intentions, and when it did
not give any warning under Castro v. United States, 540
U.S. 375 (2003), and whether the court erred by not
treating Mr. Caldwell’s October 2021 § 2255 motion
as either an amendment to the construed § 2255 mo-
tion or as the new operative pleading?
Caldwell v. United States, No. 22-10016-E, Order at 2–3 (11th Cir. June
7, 2022). This court subsequently appointed the Federal Public De-
fender for the Northern District of Georgia to represent Mr. Cald-
well. Caldwell v. United States, No. 22-10016E, Order (11th Cir. Sept.
1, 2022).
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4 Opinion of the Court 22-10016
Importantly, both Caldwell’s October § 2255 motion and the
government’s responsive motion to dismiss remain pending before
the district court.
I.
“On an appeal of a § 2255 motion to vacate, we review legal
issues de novo and factual findings for clear error.” McKathan v.
United States, 969 F.3d 1213, 1222 (11th Cir. 2020).
“Federal courts have long recognized that they have an obli-
gation to look behind the label of a motion filed by a pro se inmate
and determine whether the motion is, in effect, cognizable under a
different remedial statutory framework.” Gooden v. United States,
627 F.3d 846, 847 (11th Cir. 2010) (quoting United States v. Jordan,
915 F.2d 622, 624–25 (11th Cir. 1990)). Courts may ultimately de-
cide to recharacterize a pro se filing “in order to avoid an unneces-
sary dismissal, to avoid inappropriately stringent application of for-
mal labeling requirements, or to create a better correspondence be-
tween the substance of a pro se motion's claim and its underlying
legal basis.” Castro, 540 U.S. at 381–82 (citations omitted). Recog-
nizing the potential adverse consequences that may result from a
district court taking the exceptional step of sua sponte recharacter-
izing a pro se motion into a § 2255 motion, 1 the Supreme Court
1 28 U.S.C. § 2255(h) places heightened restrictions on “second or successive”
motions brought under the section. In particular, a litigant must have an ap-
pellate court certify that the new motion contains newly discovered evidence
“sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense” or “a new rule
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22-10016 Opinion of the Court 5
fashioned what this court has described as a “categorical and man-
datory” rule “not subject to exception.” Figuereo-Sanchez v. United
States, 678 F.3d 1203, 1206 (11th Cir. 2012). The Supreme Court
held that when a district court recharacterizes a pro se motion as a
first § 2255 motion, the district court must provide three warn-
ings—what have become known as the “Castro warnings.” See Cas-
tro, 540 U.S. at 383. More specifically, the district court must 1) “no-
tify the pro se litigant that it intends to recharacterize the pleading,”
2) “warn the litigant that this recharacterization means that any
subsequent § 2255 motion will be subject to the restrictions on ‘sec-
ond or successive’ motions,” and 3) “provide the litigant an oppor-
tunity to withdraw the motion or to amend it so that it contains all
the § 2255 claims he believes he has.” Id. If a district court fails to
provide a pro se litigant with these warnings, then that litigant’s
“motion cannot be considered to have become a § 2255 motion for
purposes of applying to later motions the law's ‘second or succes-
sive’ restrictions.” Id. That is, as a result of the district court’s fail-
ure to provide the warnings after the first § 2255 motion, the next
§ 2255 motion cannot be considered second or successive.
of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
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6 Opinion of the Court 22-10016
II.
The parties agree that the district court failed to provide
Caldwell with the requisite warnings when it characterized his June
Motion as a § 2255 motion. We join them in that agreement.2
The parties disagree, however, on the appropriate remedy.
For his part, Caldwell notes that Castro dealt with an appeal from
the denial of a § 2255 motion as second or successive. In cases like
2 Because we agree that the requisite Castro warnings were not given, and be-
cause of the remedy provided in the discussion below, we need not address
whether it was proper to construe the June Motion as a § 2255 motion in the
first instance.
In addition, Caldwell argues that the district court abused its discretion
by not sua sponte construing his October Motion as an amendment to his June
Motion. However, Caldwell’s two motions raised very different issues. As
the magistrate judge noted, Caldwell’s June Motion—in combination with his
other motions in the “series” noted above—argued that 1) his convictions for
armed bank robbery are not crimes of violence under 18 U.S.C. § 924(c); 2) his
crimes are akin to a Hobbs Act Robbery and are therefore not qualifying of-
fenses under the relevant criminal statutes; 3) U.S.S.G. § 4b1.2 is constitution-
ally vague; and 4) there is an unjustifiable disparity between his sentence and
similarly situated defendants today. In contrast, Caldwell’s October Motion
argued that 1) his counsel was ineffective; 2) the government failed to show
he was in possession of a firearm; 3) testimony at trial regarding an incriminat-
ing piece of evidence was false or misleading; 4) evidence clearly showed he
was not the bank robber; and 5) he was actually innocent. While we may have
treated the October Motion differently, given the stark differences between
the two pleadings, and given Caldwell filed his October Motion more than
two months after the government responded to his June Motion, we cannot
say the district court abused its discretion by not sua sponte recharacterizing
the October Motion as a motion to amend.
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22-10016 Opinion of the Court 7
that, where a court fails to give Castro warnings for the first motion
and subsequently denies the second motion for being second or
successive, the remedy is clear: the court must consider the second
motion unburdened by § 2255(h)’s restrictions. Caldwell argues
that his case is distinguishable. Here, Caldwell is appealing from
the denial of his initial § 2255 motion, while his second motion is
still pending. Caldwell points out that we do not have any pub-
lished caselaw addressing this situation and contends that in cir-
cumstances such as these, we should reverse or vacate the district
court’s order regarding the initial June Motion and remand with
instructions to allow him to raise all the § 2255 claims he possesses.
In the alternative, we should remand with instructions to consider
his timely and pending October Motion and permit him to add any
other claims he has.
Unsurprisingly, the government takes a different position.
The government argues that our precedent confines what we may
do, and that the only option is to affirm the district court’s decision
regarding Caldwell’s June Motion and remand with instructions to
treat his October Motion as the operative pleading. And while the
government supports the proposition of permitting Caldwell to
supplement his October Motion in order to strengthen his current
claims, it rejects the notion that he should be able to add claims,
since doing so would subvert § 2255’s time restrictions.3
3 28 U.S.C. § 2255(f) places a one-year period of limitation on motions brought
under § 2255. Relevant here, Caldwell’s claims would likely have to be
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8 Opinion of the Court 22-10016
We agree with the government. Castro’s directive is quite
clear. When a district court fails to give a pro se litigant the required
warnings, “the motion cannot be considered to have become a
§ 2255 motion for purposes of applying to later motions the law’s
‘second or successive’ restrictions.” Castro, 540 U.S. at 383. Castro
goes no further than that, and neither do we. So here, because the
district court failed to provide Caldwell the required warnings for
his initial June Motion, that motion cannot be used as a basis for
finding his October Motion to be second or successive.
Caldwell raises two concerns. First, he argues that under
this rule, pro se litigants who appeal a decision regarding their initial
§ 2255 motion will find a second motion barred by § 2255(f )’s one-
year period of limitation by time we issue a decision regarding Cas-
tro’s application. Second, he argues that this rule does not ade-
quately account for the prophylactic requirements set forth in Cas-
tro. Castro made these warnings mandatory because of their im-
portance in informing litigants of what steps they should take after
a court makes a § 2255 recharacterization. See id. at 384. The ap-
propriate remedy, then, is to put the litigants in the same place they
would have been had the error not occurred and had they received
the Castro warnings in the first instance.
As to Caldwell’s first point, this case does not require us to
address a scenario in which a litigant’s appeal of his initial § 2255
motion is pending when § 2255(f )’s time limitation creates a
brought within one year from “the date on which [his] judgment of conviction
[became] final.” Id. § 2255(f)(1).
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22-10016 Opinion of the Court 9
barrier. Here, Caldwell timely filed his October Motion. Because
we need not address it, we decline to. As to Caldwell’s second
point, Castro recognized the prophylactic and mandatory nature of
the warnings it created. Yet, Castro already prescribed the limited
remedy for a violation of its “categorical and mandatory” rule to
provide those warnings, Figuereo-Sanchez, 678 F.3d at 1206, and that
remedy is simply to not consider an initial § 2255 motion as a basis
for finding a later one second or successive, Castro, 540 U.S. at 383.
And it is precisely that remedy that we order today. The district
court may not consider Caldwell’s October Motion second and suc-
cessive, and must instead consider it as his timely, operative plead-
ing.
Still, Caldwell argues that he should be permitted to amend
his October Motion with all the claims he possesses. However, this
would go beyond the limited remedy created in Castro and would
permit Caldwell to bring claims well after § 2255(f )’s one-year time
limit. In fact, such a remedy makes even less sense here where
Caldwell appears to have thoroughly considered the claims that he
wished to bring in his October Motion, which he deliberately fash-
ioned as a § 2255 motion. We therefore decline to open the gates
to any and all additional claims not already brought in Caldwell’s
October Motion. However, we note that Caldwell may add new
claims if they “relate back” to the date of his October Motion, Dav-
enport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000), and a
district court “should freely give leave [to amend with such claims]
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10 Opinion of the Court 22-10016
when justice so requires,” Fed. R. Civ. P. 15(a)(2). 4 Therefore, while
Caldwell must be permitted to supplement his October Motion to
strengthen his existing claims and should generally be permitted to
amend with any claims that properly relate back to that October
Motion, he is not free to add any claims whatsoever.
III.
The district court’s order regarding Caldwell’s June Motion
is therefore affirmed. The district court is ordered to treat Cald-
well’s timely October Motion as the operative pleading; permit
Caldwell to supplement that motion in order to strengthen his ex-
isting claims; and, consistent with Federal Rule of Civil Procedure
15, consider any claims that properly relate back to Caldwell’s Oc-
tober Motion.
AFFIRMED and SO ORDERED.
4 Typically, under Federal Rule of Civil Procedure 15(c)(1), a claim relates back
if it arises “out of the conduct, transaction, or occurrence set out--or attempted
to be set out--in the original pleading.” However, in the § 2255 context, for an
otherwise untimely claim to relate back, it “must have more in common with
the timely filed claim than the mere fact that they arose out of the same trial
or sentencing proceeding.” Farris v. United States, 333 F.3d 1211, 1215 (11th
Cir. 2003). “The untimely claim must have arisen from the ‘same set of facts’
as the timely filed claim, not from separate conduct or a separate occurrence
in ‘both time and type.’” Id. (quoting Davenport v. United States, 217 F.3d 1341,
1344 (11th Cir. 2000)).