Case: 09-50923         Document: 00511124092               Page: 1      Date Filed: 05/27/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit
                            ____________          FILED
                                                                                         May 27, 2010
                                           No. 09-50923
                                         Summary Calendar                               Lyle W. Cayce
                                           ____________                                      Clerk

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee

v.

DANA JOHN ALEXANDER,

                                                         Defendant-Appellant
                                    _________________________

                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC No. 6:09-CV-227
                                USDC No. 6:06-CR-62-1
                               _________________________


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Dana John Alexander, federal prisoner # 56715-180, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
motion as an unauthorized successive motion.
        A COA may be granted only if the movant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). When the



        *
         Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published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 5 TH C IR . R. 47.5.4.
   Case: 09-50923    Document: 00511124092        Page: 2   Date Filed: 05/27/2010



                                   No. 09-50923

district court denies relief on procedural grounds and does not reach the
underlying constitutional claims, “a COA should issue ...[if] the prisoner shows,
at least, that jurists of 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 v. McDaniel, 

, 484 (2000).
      Although the district court informed Alexander of its recharacterization
of a pleading as a § 2255 motion, it did not inform him of the consequences of
such recharacterization on subsequent § 2255 motions or provide him with an
opportunity to withdraw or amend this motion to include all possible claims.
Thus, the recharacterized prior motion does not constitute an initial § 2255
motion that would preclude the filing of another motion as successive. See
Castro v. United States, 

, 383-84 (2003).
      Accordingly, we GRANT Alexander’s motion to proceed in forma pauperis
on appeal, GRANT Alexander a COA on the issue whether the district court
erred in denying his § 2255 motion as successive, VACATE the district court’s
denial of § 2255 relief, and REMAND to the district court for further
consideration. See Dickinson v. Wainwright, 

, 1186 (5th Cir. 1980).