FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        January 9, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 12-6174
                                                  (D.C. Nos. 5:12-CV-00691-D &
JUAN CARLOS ANGULO-LOPEZ,                              5:91-CR-00220-D-6)
                                                           (W.D. Okla.)
             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and TYMKOVICH, Circuit Judges.


      Juan Carlos Angulo-Lopez, a federal prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s dismissal of his

28 U.S.C. § 2255 motion for lack of jurisdiction as an unauthorized second or

successive motion. Because Mr. Angulo-Lopez has met the two-prong showing set




*
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
forth in Slack v. McDaniel, 

, 484 (2000), we grant a COA and remand to

the district court to consider Mr. Angulo-Lopez’s § 2255 motion on the merits.1

I. Background

      In 1992, Mr. Angulo-Lopez was convicted of eleven counts of drug

trafficking. He was sentenced to two life sentences, to be served concurrently. We

affirmed his convictions and sentences on direct appeal. In 2001, Mr. Angulo-Lopez

filed a “Rule 12” motion seeking relief from his convictions and sentences. The

district court construed the motion as a § 2255 motion to vacate, set aside, or correct

sentence, and denied the motion. We denied Mr. Angulo-Lopez’s request for a COA.

      In June of this year, Mr. Angulo-Lopez filed a § 2255 motion, arguing that

(1) his counsel was ineffective for failing to challenge a sentencing enhancement;

(2) his sentence exceeded the statutory maximum; and (3) he was actually and

factually innocent of the enhanced penalty of 21 U.S.C. § 841(b)(1)(a). The district

court concluded that this motion constituted an attempt to file an unauthorized second

or successive § 2255 motion and dismissed it for lack of jurisdiction.

II. Discussion

      When a district court denies a habeas petition on procedural grounds as the

district court did here, to obtain a COA, a prisoner must show both “that jurists of


1
       We are granting COA based on the district court’s procedural error and
therefore it is not necessary for the government to file a brief. See 10th Cir. R.
22.1(B) (providing that government shall not file a brief in response to a COA
application until requested to do so by the court).


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reason would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. In

considering the first prong of the Slack standard, this court “will not delve into the

merits of the claim, but will determine only whether the petitioner has facially

alleged the denial of a constitutional right.” Fleming v. Evans, 

, 1259

(10th Cir. 2007) (internal quotation marks omitted).

       Mr. Angulo-Lopez argues that he has presented a Sixth Amendment violation

in his petition and therefore has asserted the denial of a constitutional right as

required by Slack. In his § 2255 motion, he alleges that his counsel was ineffective

at sentencing by failing to object to an enhanced penalty provision. Reasonable

jurists could not debate that this is a facially valid claim for the denial of his Sixth

Amendment right to effective counsel.

       Mr. Angulo-Lopez also presents a persuasive argument on the district court’s

procedural ruling. In its order, the district court stated “Defendant previously sought

relief under § 2255 in 2001, but relief was denied. Thus, prior authorization from the

court of appeals to file a second or successive § 2255 motion is required.” R. Vol. 1

at 127 (footnote omitted). The problem with the district court’s reasoning is that

Mr. Angulo-Lopez did not file a § 2255 motion in 2001. As he explains in his COA

application and his affidavit attached to the application, he filed a “Federal Criminal

Rule 12” motion that the district court recharacterized as a § 2255 motion without


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advising him of the consequences of doing so and giving him an opportunity to

withdraw the motion. COA App. at 2; id. at Ex. 2; see also United States v.

Angulo-Lopez, No. 01-6418, Order (10th Cir. June 4, 2003) (unpublished)

(acknowledging that the district court recharacterized Mr. Angulo-Lopez’s “criminal

motion” as a § 2255 motion without his consent).

      The Supreme Court has given explicit instructions about what a district court

must do when it recharacterizes a pro se litigant’s motion as a first § 2255 motion:

      In such circumstances the district court must notify the pro se litigant
      that it intends to recharacterize the pleading, warn the litigant that this
      recharacterization means that any subsequent § 2255 motion will be
      subject to the restrictions on “second or successive” motions, and
      provide the litigant an opportunity to withdraw the motion or to amend
      it so that it contains all the § 2255 claims he believes he has.

Castro v. United States, 

, 383 (2003). The Court further mandated that

if the district court fails to follow this procedure, “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.” Id.

      Here, Mr. Angulo-Lopez filed a motion that the district court recharacterized

as a § 2255 motion without following the proper procedure. Under these

circumstances, Castro dictates that the motion should not count as a first § 2255.

Reasonable jurists would therefore find it debatable whether the district court was

correct in its procedural ruling dismissing Mr. Angulo-Lopez’s recently filed § 2255

as an unauthorized second or successive § 2255 motion.



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       Although we recognize that Mr. Angulo-Lopez’s recently-filed § 2255 motion

is outside of the one-year filing deadline for such motions, he argued in his motion

that his claims should be equitably tolled. The district court has not yet considered

the equitable tolling issue because of the jurisdictional dismissal on

second-or-successive grounds. The proper procedure is to remand to the district

court to consider the timeliness issue in the first instance.

       III. Conclusion

       For the foregoing reasons, we grant Mr. Angulo-Lopez’s request for COA, and

remand to the district court to consider the § 2255 motion on the merits. This is a

full remand that terminates this proceeding.

                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Chief Judge




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