                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2293
                         ___________________________

                                James Edward Smith

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

             Ray Hobbs, Director, Arkansas Department of Correction

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                              Submitted: June 28, 2012
                               Filed: October 31, 2012
                                   [Unpublished]
                                   ____________

Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges.
                        ____________

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 from filing 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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