Craig Thorstenson v. Gale Norton

1The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2960
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Kenneth Howard, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 21, 2006
Filed: February 23, 2006
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Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Kenneth Howard was sentenced to a prison term in July 2000; he did not
appeal. In May 2005, he filed a motion to vacate his sentence, citing 28 U.S.C.
§ 2244. The district court 1 denied the motion, and Howard appeals.
We affirm because the relief sought is not available under section 2244. We do
not construe the motion as one brought under 28 U.S.C. § 2255 in the absence of
appropriate warnings to Howard about the effect of such a recharacterization. See

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Castro v. United States, 540 U.S. 375, 384 (2003). Thus, to the extent Howard may
be able in the future to assert a section 2255 claim that is not time-barred, he need not
request permission to file a second or successive motion. See 28 U.S.C. § 2255;
Castro, 540 U.S. at 384. We also grant the motion that our opinion not be published.
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