United States v. Alton Couther, III

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6884

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALTON B. COUTHER, III,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:12-cr-00187-RAJ-TEM-1)

Submitted: August 24, 2021 Decided: August 27, 2021

Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Alton Bernard Couther, III, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Alton B. Couther, III, appeals the district court’s order construing his pro se petition

for a writ of audita querela, pursuant to 28 U.S.C. § 1651(a), as his first 28 U.S.C. § 2255

motion and dismissing it sua sponte as untimely. Because the district court did not provide

Couther with an important procedural protection, we vacate the order and remand for

further proceedings.

In Castro v. United States, 540 U.S. 375 (2003), the Supreme Court held that a court

may not recharacterize a pro se motion as the movant’s “first § 2255 motion unless the

court informs the litigant of its intent to recharacterize, warns the litigant that the

recharacterization will subject subsequent § 2255 motions to the law’s ‘second or

successive’ restrictions, and provides the litigant with an opportunity to withdraw, or to

amend, the filing.” Id. at 377. The district court did not follow the dictates of Castro here:

it did not advise Couther of its intent to recharacterize his petition as a § 2255 motion, warn

him of the ensuing consequences, or provide him with an opportunity to avoid those

consequences.

Due to this substantial notice problem, we vacate the court’s order and remand for

further proceedings. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

VACATED AND REMANDED