IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 95-50715

                             Summary Calendar
                          _____________________


           UNITED STATES OF AMERICA,

                                  Plaintiff-Appellee,

           v.

           ROY MARION JONES,

                                  Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                           (A-94-CV-222)
_________________________________________________________________
                           April 5, 1996
Before KING, JOLLY, and PARKER, Circuit Judges.

PER CURIAM:*

     Roy   Marion    Jones   appeals    the   denial   of   his   motion   for

reconsideration and leave to present new evidence.            We vacate and

remand.

     Jones was convicted for a 1982 conspiracy to import marijuana.

United States v. Jones, No. 91-8399 (5th Cir. March 10, 1992)

(unpublished).      Jones was indicted for the conspiracy in 1983, but

was not arrested until 1990 because he was in Central and South

America under an assumed name.         In affirming the conviction, this

     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
court rejected Jones's assertions that he was denied a speedy

trial, that the evidence was insufficient to support his conspiracy

convictions, and that the district court abused its discretion in

sentencing him.

     Jones filed a motion pursuant to Fed. R. Crim. P. 35.              The

district court summarily denied the motion.           This court granted

Jones's unopposed motion to remand the appeal to the district court

to allow it to consider the then-recent Supreme Court case of

Doggett v. Unites States, 

(1992).         Following remand,

the district court again denied the motion.          This court affirmed

the denial stating that the issues raised by Jones challenging the

validity of his conviction were not properly brought under Rule 35,

and that the district court did not abuse its discretion in

sentencing Jones to consecutive sentences. United States v. Jones,

No. 92-8411 (5th Cir. October 25, 1993) (unpublished).

     On March 30, 1994, Jones filed a motion to vacate, set aside,

or correct judgment pursuant to 28 U.S.C. § 2255.         In that motion

and a subsequent amendment, Jones again asserted violation of his

right to a speedy trial and an improper sentence.         The magistrate

judge   recommended   that   Jones's   motion   be   denied   because   his

sentencing issue should have been brought on direct appeal and

because the speedy trial issue had been previously adjudicated.

The district court adopted the recommendation of the magistrate

judge over Jones's objection.      Jones filed a timely appeal from

denial of his § 2255 motion, but that appeal was dismissed for want

of prosecution for failure to pay the docketing fee.          Jones filed


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a motion to proceed in forma pauperis (IFP), but the district court

deferred ruling on the motion to this court.            Jones did not file an

IFP motion with this court.

      On August 2, 1995, Jones filed a motion for reconsideration

and   leave    to   present   new   evidence.      In   addition   to   seeking

reconsideration on the issues that had been denied, Jones sought to

raise a new issue under Brady v. Maryland, 

, 87 (1963).

Jones asserted that the prosecution did not disclose that a key

witness for the prosecution, Robert Nestoroff, had been under

investigation for conspiracy to obstruct justice and perjury with

respect to criminal investigations.               See 

responded urging the district court to construe the motion as a

second § 2255 motion and to notify Jones that his motion could be

dismissed under Rule 9(b).            The district court denied Jones's

motion to present new evidence for reconsideration without giving

reasons or the basis of the decision.            Jones timely filed a notice

of appeal from this denial.         The district court granted Jones leave

to proceed IFP on appeal.

      On appeal, both parties argue the merits of the issues that

Jones presented in his motion for reconsideration.             Neither party

has addressed the nature of the motion to present new evidence for

reconsideration nor has the government reurged its argument that

the   motion    should   be   dismissed     as   abusive   under   Rule   9(b).

Although motions for reconsideration generally fall under the

purview of Fed. R. Civ. P. 60(b), there is "a discernable trend

among the circuits to treat motions purporting to rely on Rule


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60(b) `as the functional equivalent of a second petition for habeas

corpus.'"    Williams v. Whitley, 

, 230 n.2 (5th Cir.),

cert. denied, 

(1993) (citation omitted).

       Jones's motion is particularly suited to interpretation as a

second petition under § 2255 because in addition to revisiting the

issues raised in his first § 2255 petition, it attempts to raise a

new issue.    If the district court had treated Jones's motion as a

separate § 2255 motion, the motion should have been evaluated it in

accordance    with   Rule   9(b)   of   the   Rules   Governing   §   2255

Proceedings, regarding delayed or successive motions before the

merits of his claims were addressed because it was raised in the

district court by the government.        See 

n.2.    Although three of the issues raised by Jones in his motion

for reconsideration are clearly successive, his Brady issue had not

been raised before.    This issue would not be found to be abusive of

the rules if Jones could show cause and prejudice under McCleskey

v. Zant, 

, 489-96 (1991), for failing to raise the

issue in his first § 2255 motion.       See 

.

       In its response to Jones's motion, the government urged the

district court to construe the motion as a second § 2255 motion and

to notify Jones that his motion could be dismissed under Rule 9(b).

Although Jones responded to this argument by stating that he had

presented the reasons for the delay in raising the issue, he did

not restate those reasons.     The possibility exists that Jones did

not know that Nestoroff, a key witness for the prosecution, had

been under investigation for conspiracy to obstruct justice and


                                    4
perjury with respect to criminal investigations until sometime

after Nestoroff was indicted for these offenses in 1994. Jones may

not have known and may not have reasonably been expected to know

about the investigation of Nestoroff until the indictment was

returned.      This may be cause for not raising the claim that the

fact of investigation of Nestoroff should have been disclosed under

Brady in his original § 2255 motion.               See Saahir v. Collins, 

,    118-19    (5th   Cir.    1992)     ("the      question   is   whether

petitioner possessed, or by reasonable means could have obtained,

a sufficient basis to allege a claim in the first petition").                     The

district court did not give Jones specific notice that his motion

could be dismissed as successive.                This error is not harmless

because it is not clear from the record that dismissal under Rule

9(b)   would    be   nearly     certain       because    Jones   could    not    have

reasonably been expected to have known the facts underlying his

claim.    See 

n.2.

       This court cannot dismiss the motion as successive because the

district court did not give Jones notice that his motion was in

danger of dismissal as successive and the failure to give that

notice was not harmless error.            See 

.

       The    district   court's       dismissal        of   Jones's    motion   for

reconsideration is vacated and the case is remanded to the district

court with instructions to construe the motion as a second motion

under § 2255 and to review it as such under Rule 9(b) of the Rules

Governing § 2255 Proceedings.

       VACATED and REMANDED.


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