Brian T. Williams v. United States of America

1 This opinion is being released in typescript; a printed version will follow.
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 04-1758
BRIAN T. WILLIAMS,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
___________________________
On Application for an Order Authorizing the District Court
to Entertain a Second or Successive Motion for
Collateral Review
___________________________
SUBMITTED MARCH 26, 2004 — DECIDED APRIL 22, 20041
___________________________
Before POSNER, RIPPLE, AND ROVNER, Circuit Judges.
PER CURIAM. Brian Williams did not appeal his 240-month sentence for
participating in a drug trafficking conspiracy. However, after the time to appeal
expired, he filed a motion to withdraw his guilty plea. The district court construed the
filing as a motion under 28 U.S.C. § 2255 and Williams filed a motion to amend his
pleadings, which the court granted. Ultimately, the district court denied collateral
relief, Williams v. United States, No. 01-4016 (C.D. Ill. June 19, 2001), and this court
denied Williams’ request for a certificate of appealability. No. 01-3298 (7th Cir. Nov.
21, 2001). Now Williams has filed an application for an order pursuant to 28 U.S.C.
§ 2244(b)(3) authorizing the district court to consider a second or successive collateral
attack.

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No. 04-1758 Page 2
Relying on Castro v. United States, 124 S. Ct. 786 (2003), Williams argues that he need not
obtain authorization because he did not receive adequate notice of the consequences of pursuing his
motion under § 2255. Under Castro, decided two years after the events at issue here, a district court
may not “recharacterize a pro se litigant’s motion as the litigant’s first § 2255 motion unless the
court informs that litigant of its intent to recharacterize, warns the litigant that the recharacterization
will subject subsequent § 2255 motions to the law’s ‘second or successive’ restrictions, and provides
the litigant an opportunity to withdraw, or to amend, the filing.” Id. at 789. The record clearly
establishes that the district court notified Mr. Williams of its intent to recharacterize his motion and
allowed him to add claims to the recharacterized motion. The application, however, does not show
that the district court warned Williams about the consequences of recharacterization under § 2255
¶8. Assuming the district court did not warn Williams about the restrictions on second or successive
collateral attacks, the warnings were inadequate under Castro and, thus, the prior proceeding does
not count for purposes of § 2255 ¶8.
Accordingly, we DISMISS as unnecessary Williams’ application for leave to commence a
successive collateral attack.

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