United States Court of Appeals

For the Eighth Circuit

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No. 12-2293

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James Edward Smith

lllllllllllllllllllll Plaintiff - Appellant

v.

Ray Hobbs, Director, Arkansas Department of Correction

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Pine Bluff

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 Submitted: June 28, 2012

 Filed: October 31, 2012

[Unpublished]

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Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Arkansas prisoner James Smith appeals following the dismissal of his pro se

42 U.S.C. § 1983 action that was recharacterized as a first 28 U.S.C. § 2254 petition

by the district court. Upon our careful review of the record, it is apparent that the

district court did not provide Smith with proper notice, warnings, and an opportunity

to withdraw his pleadings prior to recharacterizing his action as a first § 2254
petition. See Castro v. United States, 540 U.S. 375, 382-83 (2003) (court that wishes

to recharacterize pro se litigant’s pleading as first 28 U.S.C. § 2255 motion must (1)

notify litigant of court’s intent, (2) warn litigant that recharacterization means that

subsequent § 2255 motion will be subject to restrictions on “second or successive”

motions, and (3) give litigant opportunity to withdraw motion or to amend it to

include all § 2255 claims); see also Morales v. United States, 304 F.3d 764, 767 (8th

Cir. 2002) (reversing and remanding where district court reclassified pro se litigant’s

pleading as first § 2255 motion without notice, warnings, and opportunity to

withdraw). 

Accordingly, we vacate and remand to the district court to provide Smith with

Castro notice. The application for a certificate of appealability is denied as

unnecessary.

COLLOTON, Circuit Judge, dissenting.

In Castro v. United States, 540 U.S. 375 (2003), the Supreme Court explained

that “[f]ederal courts sometimes will ignore the legal label that a pro se litigant

attaches to a motion and recharacterize the motion in order to place it within a

different legal category.” Id. at 381. One reason for such recharacterization is “to

create a better correspondence between the substance of a pro se motion’s claim and

its underlying legal basis.” Id. The district court followed that course here when it

directed the clerk to designate James Edward Smith’s action as a habeas corpus

petition under 28 U.S.C. § 2254, rather than as a civil rights action brought under 42

U.S.C. § 1983, as Smith had denominated it. R. Doc. 3. As the magistrate judge later

explained, Smith “sought injunctive relief solely concerning the execution of his

sentence,” and § 1983 “‘must yield to the more specific habeas statute, with its

attendant procedural and exhaustion requirements, where an inmate seeks injunctive

relief challenging the fact of his conviction or the duration of his sentence.’” R. Doc.

50, at 1 (quoting Nelson v. Campbell, 541 U.S. 637, 643 (2004)). The district court

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then dismissed Smith’s recharacterized habeas petition and denied Smith’s

application for a certificate of appealability.

Castro held that when a district court recharacterizes a pro se litigant’s motion

as a first § 2255 motion, the court must notify the litigant, warn him that any

subsequent § 2255 motion will be subject to the restrictions on “second or

successive” motions, and provide the litigant with an opportunity to withdraw or

amend the motion. 540 U.S. at 383. “If the court fails to do so, the motion cannot be

considered to have become a § 2255 motion for purposes of applying to later motions

the law’s ‘second or successive’ restrictions.” Id. (emphasis added). The Supreme

Court thus adopted what this court in Morales v. United States, 304 F.3d 764 (8th

Cir. 2002), described as “a remedial approach,” to wit: “when deciding whether a

§ 2255 motion is second or successive, a prior miscellaneous motion that the district

court reclassified as a § 2255 motion will not be counted as a first § 2255 motion

unless the litigant was warned about the consequences of reclassification and gave

his informed consent.” Id. at 766-67. 

We may assume that Castro’s limitation on recharacterization also applies to

habeas corpus petitions under § 2254. E.g., Martin v. Overton, 391 F.3d 710, 713

(6th Cir. 2004). That the district court here failed to follow the Castro procedure,

however, did not take the motion outside the scope of § 2254. Smith still sought

injunctive relief concerning the execution of his sentence—relief that can only be had

under § 2254—and the district court thus properly treated the motion as a habeas

corpus application. See United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.

2005); Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). The district

court’s failure to give the “Castro warnings” means that if Smith were to file a second

habeas corpus application, then it could not be treated as a “second or successive”

application for purposes of the restrictions set forth at 28 U.S.C. § 2244(b). But

nothing prevented Smith fromfiling another § 2254 application, and no other remedy

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is available for the district court’s failure to follow the procedure prescribed in

Castro. See Williams v. United States, 464 F. App’x 834 (11th Cir. 2012). 

To take an appeal from the denial of a § 2254 petition, the petitioner must have

a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate may issue only

if the applicant has made a substantial showing of the denial of the constitutional

right. Id. § 2253(c)(2). The certificate requirement “may not be circumvented

through creative pleading,” Lambros, 404 F.3d at 1036, such as by labeling the matter

as an action brought under § 1983. “A certificate of appealability is required to

appeal the denial of any motion that effectively or ultimately seeks habeas corpus or

§ 2255 relief.” Id. (emphasis added). The absence of notice and warnings prescribed

by Castro does not relieve Smith of the requirement that he must obtain a certificate

to appeal the dismissal of his recharacterized § 2254 petition. Wurzinger v. United

States, 306 F. App’x 303, 305 (7th Cir. 2009). Smith has not made the requisite

showing to satisfy § 2253(c), so the appeal should be dismissed.

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