Case: 17-40417      Document: 00514276147         Page: 1    Date Filed: 12/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                      No. 17-40417
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                            December 18, 2017

UNITED STATES OF AMERICA,                                                      Lyle W. Cayce
                                                                                    Clerk
                                                 Plaintiff-Appellee

v.

JAVIER CISNEROS, also known as El Negro,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:17-CV-36
                            USDC No. 1:94-CR-181-13


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Javier Cisneros, former federal prisoner # 65822-079, moves for a
certificate of appealability (COA) to appeal from the dismissal of his 28 U.S.C.
§ 2255 petition challenging his federal conviction of three counts of possession
with the intent to distribute marijuana, one count of conspiracy to possess with
the intent to distribute marijuana, and one count of money laundering. He




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-40417

argues that the district court erred by dismissing his § 2255 petition for lack
of jurisdiction as an unauthorized successive petition.
      In   1996,   Cisneros   filed   a   post-conviction   motion,   which   was
recharacterized by the district court as a § 2255 motion. Because Cisneros was
not notified of the district court’s intent to treat his motion as a § 2255 motion
and was not afforded the opportunity to withdraw the motion or to amend it to
include all of his § 2255 claims, it cannot count as an initial § 2255 motion and
cannot be used to bar a second or successive § 2255 motion. See Castro v.
United States, 

, 383 (2003).
      In 1998, Cisneros filed a § 2255 motion, which the district court denied
without addressing the merits of his claims. Cisneros subsequently filed a
motion for reconsideration of that order, arguing that the district court had not
considered the merits of his § 2255 motion. The district court denied the
motion. Cisneros then sought a COA. In an order issued prior to the Supreme
Court’s decision in Castro, a COA was denied on the grounds that Cisneros’s
1998 § 2255 motion was an unauthorized, successive motion. Because his first
postconviction motion does not count as an initial § 2255 motion, see 

, his 1998 motion should not have been treated as successive,
cf. McDaniel v. United States, 242 F. App’x 217, 218 (5th Cir. 2007). As such,
his February 2017 motion also should not have been treated as successive.
      Consequently, Cisneros has shown that “jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 

, 327 (2003). We therefore
GRANT both the motion for a COA and the motion for leave to proceed in forma
pauperis, VACATE the district court’s judgment, and REMAND to the district




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                                  No. 17-40417

court for further proceedings. See Whitehead v. Johnson, 

, 388
(5th Cir. 1998); FED. R. APP. P. 24.




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