Richard Thurston v. State of Maryland
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-01766-JFM Copies to all parties and the district court/agency. [999574929]. Mailed to: Thurston. [14-7707]
Appeal: 14-7707
Doc: 19
Filed: 04/30/2015
Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7707
RICHARD A. THURSTON,
Petitioner - Appellant,
v.
STATE OF MARYLAND,
Respondent - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cv-01766-JFM)
Submitted:
April 20, 2015
Decided:
April 30, 2015
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed
opinion.
in
part;
vacated
in
part
by
unpublished
per
curiam
Richard A. Thurston, Appellant Pro Se.
Edward John Kelley,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 14-7707
Doc: 19
Filed: 04/30/2015
Pg: 2 of 3
PER CURIAM:
Richard A. Thurston, a Maryland inmate, seeks to appeal the
district court’s order denying relief on his petition for a writ
of error coram nobis and dismissing the petition as untimely to
the extent it could be construed as a petition filed pursuant to
28 U.S.C. § 2254 (2012).
We affirm the district court’s denial
of relief on Thurston’s petition for a writ of error coram nobis
for
the
reasons
Maryland,
stated
No.
by
the
district
1:13-cv-01766-JFM
(D.
court.
Md.,
Thurston
Nov.
4,
v.
2014).
However, we vacate that portion of the district court’s order
contruing
the
petition
as
one
filed
pursuant
to
28
U.S.C.
§ 2254.
A
district
opportunity
to
court
respond
must
first
before
give
a
prisoner
construing
a
notice
mislabeled
and
post-
conviction motion as an initial § 2254 petition.
Castro v.
United
States
States,
540
U.S.
375,
383
(2003);
United
v.
Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002), overruled in part
on other grounds by Castro, 540 U.S. at 383, as recognized in
United States v. Blackstock, 513 F.3d 128, 133 (4th Cir. 2008).
In
Emmanuel,
we
held
that
a
district
court
must
notify
a
prisoner if the court intends to recharacterize a motion as the
movant’s first federal habeas petition.
If the prisoner fails
to respond within the time set by the district court, the court
may proceed with the recharacterization.
2
If the movant agrees
Appeal: 14-7707
Doc: 19
Filed: 04/30/2015
Pg: 3 of 3
to recharacterization, the court should permit amendments to the
motion.
If, however, the movant objects to recharacterization,
the court should not treat the motion as a § 2254 or § 2255
motion but must rule on the merits of the motion as filed.
F.3d at 649.
288
Similarly, in Castro, 540 U.S. at 377, 383, the
Supreme Court held that a pro se litigant must be warned before
a motion is recharacterized as his first federal habeas motion,
and the district court must furthermore “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.”
Here,
the
district
court
erred
by
treating
Thurston’s
petition as a § 2254 petition after he timely objected to such
treatment.
Accordingly, we vacate that portion of the district
court’s order.
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.
AFFIRMED IN PART;
VACATED IN PART
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?