James Smith v. Ray Hobbs

490 F. App'x 833

Opinions

PER CURIAM.

Arkansas prisoner James Smith appeals following the dismissal of his pro se 42 U.S.C. § 1983 action that was recharacter-ized 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 re-characterizing his action as a first § 2254 petition. See Castro v. United States, 540 U.S. 375, 382-83, 124 S.Ct. 786, 157 L.Ed.2d 778 (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.