Brian T. Williams v. United States of America

1 This opinion was released in typescript with the notation that
a printed version would follow.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1758
B RIAN T. W ILLIAMS ,
Applicant,
v.
U NITED S TATES OF A MERICA ,
Respondent.
____________
On Application for an Order Authorizing
the District Court to Entertain a Second or
Successive Motion for Collateral Review
____________
S UBMITTED M ARCH 26, 2004—D ECIDED A PRIL 22, 2004 1
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Before POSNER , R IPPLE , and R OVNER , Circuit Judges.
P ER C URIAM . Brian Williams did not appeal his 240-
month sentence for participating in a drug trafficking con-
spiracy. 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

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2 No. 04-1758
relief, Williams v. United States, No. 01-4016 (C.D. Ill. June 19,
2001), and this court denied Williams’ request for a certifi-
cate of appealability. No. 01-3298 (7th Cir. Nov. 21, 2001).
Now Williams has filed an application for an order pursu-
ant to 28 U.S.C. § 2244(b)(3) authorizing the district court to
consider a second or successive collateral attack.
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 conse-
quences 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 the
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 with an opportunity to withdraw, or to
amend, the filing.” Id. at 789. The record clearly establishes
that the district court notified 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. Assum-
ing 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 D ISMISS as unnecessary Williams’ ap-
plication for leave to commence a successive collateral
attack.

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No. 04-1758 3
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-04

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