CASTRO v. UNITED STATES

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375 OCTOBER TERM, 2003
Syllabus
CASTRO v. UNITED STATES
certiorari to the united states court of appeals for
the eleventh circuit
No. 02–6683. Argued October 15, 2003—Decided December 15, 2003
In 1994, petitioner Castro attacked his federal drug conviction in a pro se
motion for a new trial pursuant to Federal Rule of Criminal Procedure
33. The Government responded that the claims were more cognizable
as federal habeas claims under 28 U. S. C. § 2255. The District Court
denied Castro’s motion on the merits, referring to it as both a Rule 33
and a § 2255 motion. Castro did not challenge this recharacterization
of his motion on his pro se appeal, and the Eleventh Circuit summarily
affirmed. In 1997, Castro, again pro se, filed a § 2255 motion raising,
inter alia, a new claim for ineffective assistance of counsel. The Dis-
trict Court denied the motion, but the Eleventh Circuit remanded for
the District Court to consider, among other things, whether this was
Castro’s second § 2255 motion. The District Court appointed counsel,
determined that the 1997 motion was indeed Castro’s second § 2255 mo-
tion (the 1994 motion being his first), and dismissed the motion for fail-
ure to comply with § 2255’s requirement that Castro obtain the Court of
Appeals’ permission to file a “second or successive” motion. The Elev-
enth Circuit affirmed.
Held:
1. This Court’s review of Castro’s claim is not barred by the require-
ment that the “grant or denial of an authorization by a court of appeals
to file a second or successive application . . . shall not be the subject of
a [certiorari] petition,” 28 U. S. C. § 2244(b)(3)(E). Castro nowhere
asked the Eleventh Circuit to grant, and it nowhere denied, such au-
thorization. Contrary to the Government’s position, the court’s state-
ment that Castro’s petition could not meet the requirements for second
or successive petitions cannot be taken as a statutorily relevant “denial”
of an authorization request not made. Even accepting the Govern-
ment’s characterization, the argument would founder because the certio-
rari petition’s “subject” is not the Eleventh Circuit’s authorization “de-
nial,” but the lower courts’ refusal to recognize that this § 2255 motion
is Castro’s first. Moreover, reading the statute as the Government sug-
gests would create procedural anomalies, allowing review where the
lower court decision disfavors, but denying review where it favors, the
Government; would close this Court’s doors to a class of habeas petition-
ers without any clear indication that such was Congress’ intent; and

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376 CASTRO v. UNITED STATES
Syllabus
would be difficult to reconcile with the principle that this Court reads
limitations on its jurisdiction narrowly. Pp. 379–381.
2. A federal court cannot recharacterize a pro se litigant’s motion as
a first § 2255 motion unless it first informs the litigant of its intent to
recharacterize, warns the litigant that this recharacterization means
that any subsequent § 2255 motion will be subject to the restrictions on
“second or successive” motions, and provides the litigant an opportunity
to withdraw the motion or to amend it so that it contains all the § 2255
claims he believes he has. If these warnings are not given, 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.
Nine Circuits have placed such limits on recharacterization, and no one
here contests the lawfulness of this judicially created requirement.
Pp. 381–383.
3. Because the District Court failed to give the prescribed warnings,
Castro’s 1994 motion cannot be considered a first § 2255 motion and his
1997 motion cannot be considered a second or successive one. The Gov-
ernment argues that Castro’s failure to appeal the 1994 recharacteriza-
tion makes the recharacterization valid as a matter of “law of the case.”
And, according to the Government, since the 1994 recharacterization is
valid, the 1997 § 2255 motion is Castro’s second, not his first. This
Court disagrees. The point of a warning is to help the pro se litigant
understand not only (1) whether he should withdraw or amend his mo-
tion, but also (2) whether he should contest the recharacterization, say,
on appeal. The lack of warning prevents his making an informed judg-
ment as to both. The failure to appeal simply underscores the practical
importance of providing the warning. Hence, an unwarned recharac-
terization cannot count as a § 2255 motion for purposes of the “second
or successive” provision whether or not the unwarned pro se litigant
takes an appeal. Even assuming that the law of the case doctrine ap-
plies here, the doctrine simply expresses common judicial practice; it
does not limit the courts’ power. Pp. 383–384.
290 F. 3d 1270, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ.,
joined, and in which Scalia and Thomas, JJ., joined as to Parts I and
II. Scalia, J., filed an opinion concurring in part and concurring in the
judgment, in which Thomas, J., joined, post, p. 385.
Michael G. Frick, by appointment of the Court, post,
p. 807, argued the cause and filed briefs for petitioner.

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377 Cite as: 540 U. S. 375 (2003)
Opinion of the Court
Dan Himmelfarb argued the cause for the United States.
With him on the brief were Solicitor General Olson, Assist-
ant Attorney General Chertoff, Deputy Solicitor General
Dreeben, and Nina Goodman.*
Justice Breyer delivered the opinion of the Court.
Under a longstanding practice, a court sometimes treats
as a request for habeas relief under 28 U. S. C. § 2255 a mo-
tion that a pro se federal prisoner has labeled differently.
Such recharacterization can have serious consequences for
the prisoner, for it subjects any subsequent motion under
§ 2255 to the restrictive conditions that federal law imposes
upon a “second or successive” (but not upon a first) federal
habeas motion. § 2255, ¶ 8. In light of these consequences,
we hold that the court cannot so recharacterize a pro se liti-
gant’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. Where these things are
not done, a recharacterized motion will not count as a § 2255
motion for purposes of applying § 2255’s “second or succes-
sive” provision.
I
This case focuses upon two motions that Hernan O’Ryan
Castro, a federal prisoner acting pro se, filed in federal court.
He filed the first motion in 1994, the second in 1997.
A
The relevant facts surrounding the 1994 motion are the
following:
*Paul Mogin and Lisa B. Kemler filed a brief for the National Associa-
tion of Criminal Defense Lawyers as amicus curiae urging reversal.

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(1) On July 5, 1994, Castro filed a pro se motion attacking
his federal drug conviction, a motion that he called a Rule
33 motion for a new trial. See Fed. Rule Crim. Proc. 33.
(2) The Government, in its response, said that Castro’s
claims were “more properly cognizable” as federal habeas
corpus claims, i. e., claims made under the authority of 28
U. S. C. § 2255. But, the Government added, it did not
object to the court’s considering Castro’s motion as having
invoked both Rule 33 and § 2255.
(3) The District Court denied Castro’s motion on the mer-
its. In its accompanying opinion, the court generally re-
ferred to Castro’s motion as a Rule 33 motion; but the court
twice referred to it as a § 2255 motion as well. App. 137–144.
(4) Castro, still acting pro se, appealed, but he did
not challenge the District Court’s recharacterization of his
motion.
(5) The Court of Appeals summarily affirmed. It said in
its one-paragraph order that it was ruling on a motion based
upon both Rule 33 and § 2255. Judgt. order reported at 82
F. 3d 429 (CA11 1996); App. 147.
B
The relevant facts surrounding the 1997 motion are the
following:
(1) On April 18, 1997, Castro, acting pro se, filed what he
called a § 2255 motion. The motion included claims not
raised in the 1994 motion, including a claim of ineffective
assistance of counsel.
(2) The District Court denied the motion; Castro appealed;
and the Court of Appeals remanded for further consideration
of the ineffective-assistance-of-counsel claim. It also asked
the District Court to consider whether, in light of the 1994
motion, Castro’s motion was his second § 2255 motion, rather
than his first.
(3) On remand, the District Court appointed counsel for
Castro. It then decided that the 1997 motion was indeed

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Opinion of the Court
Castro’s second § 2255 motion (the 1994 motion being his
first). And it dismissed the motion for failure to comply
with one of § 2255’s restrictive “second or successive” condi-
tions (namely, Castro’s failure to obtain the Court of Appeals’
permission to file a “second or successive” motion). § 2255,
¶ 8. The District Court granted Castro a certificate to ap-
peal its “second or successive” determination. § 2253(c)(1).
(4) The Eleventh Circuit affirmed by a split (2-to-1) vote.
290 F. 3d 1270 (2002). The majority “suggested” and
“urged” district courts in the future to “warn prisoners of
the consequences of recharacterization and provide them
with the opportunity to amend or dismiss their filings.” Id.,
at 1273, 1274. But it held that the 1994 court’s failure to do
so did not legally undermine its recharacterization. Hence,
Castro’s current § 2255 motion was indeed his second habeas
motion. Id., at 1274.
Other Circuits have taken a different approach. E. g.,
United States v. Palmer, 296 F. 3d 1135, 1145–1147 (CADC
2002) (announcing a rule requiring courts to notify pro se
litigants prior to recharacterization and refusing to find the
§ 2255 motion before it “second or successive” since such no-
tice was lacking). We consequently granted Castro’s peti-
tion for certiorari.
II
We begin with a jurisdictional matter. We asked the par-
ties to consider the relevance of a provision in the federal
habeas corpus statutes that says that the
“grant or denial of an authorization by a court of appeals
to file a second or successive application . . . shall not be
the subject of a petition for . . . a writ of certiorari.” 28
U. S. C. § 2244(b)(3)(E).
After receiving the parties’ responses, we conclude that this
provision does not bar our review here.
Castro’s appeal to the Eleventh Circuit did not concern an
“authorization . . . to file a second or successive application.”

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The District Court certified for appeal the question whether
Castro’s § 2255 motion was his first such motion or his sec-
ond. Castro then argued to the Eleventh Circuit that his
§ 2255 motion was his first; and he asked the court to re-
verse the District Court’s dismissal of that motion. He no-
where asked the Court of Appeals to grant, and it nowhere
denied, any “authorization . . . to file a second or successive
application.”
The Government argues that the Eleventh Circuit’s opin-
ion had the effect of denying “authorization . . . to file a sec-
ond . . . application” because the court said in its opinion that
Castro’s motion could not meet the requirements for second
or successive motions. 290 F. 3d, at 1273. For that reason,
the Government concludes, the court’s decision falls within
the scope of the jurisdictional provision. Brief for United
States 16.
In our view, however, this argument stretches the words
of the statute too far. Given the context, we cannot take
these words in the opinion as a statutorily relevant “denial”
of a request that was not made. Even if, for argument’s
sake, we were to accept the Government’s characterization,
the argument nonetheless would founder on the statute’s re-
quirement that the “denial” must be the “subject” of the cer-
tiorari petition. The “subject” of Castro’s petition is not the
Court of Appeals’ “denial of an authorization.” It is the
lower courts’ refusal to recognize that this § 2255 motion is
his first, not his second. That is a very different question.
Cf. Adamo Wrecking Co. v. United States, 434 U. S. 275,
282–283 (1978) (statute barring court review of lawful-
ness of agency “emission standard” in criminal case does
not bar court review of whether regulation is an “emission
standard”).
Moreover, reading the statute as the Government suggests
would produce troublesome results. It would create proce-
dural anomalies, allowing review where the lower court deci-
sion disfavors, but denying review where it favors, the Gov-

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Opinion of the Court
ernment. Cf. Stewart v. Martinez-Villareal, 523 U. S. 637,
641–642 (1998) (allowing the Government to obtain review of
a decision that a habeas corpus application is not “second or
successive”). It would close our doors to a class of habeas
petitioners seeking review without any clear indication that
such was Congress’ intent. Cf. Felker v. Turpin, 518 U. S.
651, 660–661 (1996). And any such conclusion would prove
difficult to reconcile with the basic principle that we “read
limitations on our jurisdiction to review narrowly.” Utah v.
Evans, 536 U. S. 452, 463 (2002).
We conclude that we have the power to review Castro’s
claim, and we turn to the merits of that claim.
III
Federal 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.
See, e. g., Raineri v. United States, 233 F. 3d 96, 100 (CA1
2000); United States v. Detrich, 940 F. 2d 37, 38 (CA2 1991);
United States v. Miller, 197 F. 3d 644, 648 (CA3 1999); Raines
v. United States, 423 F. 2d 526, 528, n. 1 (CA4 1970); United
States v. Santora, 711 F. 2d 41, 42 (CA5 1983); United States
v. McDowell, 305 F. 2d 12, 14 (CA6 1962); Henderson v.
United States, 264 F. 3d 709, 711 (CA7 2001); McIntyre v.
United States, 508 F. 2d 403, n. 1 (CA8 1975) (per curiam);
United States v. Eatinger, 902 F. 2d 1383, 1385 (CA9 1990)
(per curiam); United States v. Kelly, 235 F. 3d 1238, 1242
(CA10 2000); United States v. Jordan, 915 F. 2d 622, 625
(CA11 1990); United States v. Tindle, 522 F. 2d 689, 693
(CADC 1975) (per curiam). They may do so in order to
avoid an unnecessary dismissal, e. g., id., at 692–693, to avoid
inappropriately stringent application of formal labeling re-
quirements, see Haines v. Kerner, 404 U. S. 519, 520 (1972)
(per curiam), or to create a better correspondence between
the substance of a pro se motion’s claim and its underlying

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Opinion of the Court
legal basis, see Hughes v. Rowe, 449 U. S. 5, 10 (1980) (per
curiam); Andrews v. United States, 373 U. S. 334 (1963).
We here address one aspect of this practice, namely, cer-
tain legal limits that nine Circuits have placed on recharac-
terization. Those Circuits recognize that, by recharacteriz-
ing as a first § 2255 motion a pro se litigant’s filing that did
not previously bear that label, the court may make it sig-
nificantly more difficult for that litigant to file another such
motion. They have consequently concluded that a district
court may not recharacterize a pro se litigant’s motion as a
request for relief under § 2255—unless the court first warns
the pro se litigant about the consequences of the recharacter-
ization, thereby giving the litigant an opportunity to contest
the recharacterization, or to withdraw or amend the motion.
See Adams v. United States, 155 F. 3d 582, 583 (CA2 1998)
(per curiam); United States v. Miller, supra, at 646–647
(CA3); United States v. Emmanuel, 288 F. 3d 644, 646–647
(CA4 2002); In re Shelton, 295 F. 3d 620, 622 (CA6 2002)
(per curiam); Henderson v. United States, supra, at 710–711
(CA7); Morales v. United States, 304 F. 3d 764, 767 (CA8
2002); United States v. Seesing, 234 F. 3d 456, 463 (CA9 2000);
United States v. Kelly, supra, at 1240–1241 (CA10); United
States v. Palmer, 296 F. 3d, at 1146 (CADC); see also 290
F. 3d, at 1273, 1274 (case below) (suggesting that courts pro-
vide such warnings).
No one here contests the lawfulness of this judicially cre-
ated requirement. The Government suggests that Federal
Rule of Appellate Procedure 47 provides adequate underly-
ing legal authority for the procedural practice. Brief for
United States 42. It suggests that this Court has the au-
thority to regulate the practice through “the exercise” of
our “supervisory powers” over the Federal Judiciary. E. g.,
McNabb v. United States, 318 U. S. 332, 340–341 (1943).
And it notes that limiting the courts’ authority to recharac-
terize, approximately as the Courts of Appeals have done,

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Opinion of the Court
“is likely to reduce and simplify litigation over questions of
characterization, which are often quite difficult.” Brief for
United States 42.
We agree with these suggestions. We consequently hold,
as almost every Court of Appeals has already held, that the
lower courts’ recharacterization powers are limited in the
following way:
The limitation applies when a court recharacterizes a
pro se litigant’s motion as a first § 2255 motion. In such cir-
cumstances the district court must notify the pro se litigant
that it intends to recharacterize the pleading, warn the liti-
gant that this recharacterization means that any subsequent
§ 2255 motion will be subject to the restrictions on “second
or successive” motions, and provide the litigant an opportu-
nity to withdraw the motion or to amend it so that it contains
all the § 2255 claims he believes he has. 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. § 2255, ¶ 8.
IV
The District Court that considered Castro’s 1994 motion
failed to give Castro warnings of the kind we have described.
Moreover, this Court’s “supervisory power” determinations
normally apply, like other judicial decisions, retroactively, at
least to the case in which the determination was made. Mc-
Nabb, supra, at 347 (applying new supervisory rule to case
before the Court). Hence, given our holding in Part III,
supra, Castro’s 1994 motion cannot be considered a first
§ 2255 motion, and his 1997 motion cannot be considered a
“second or successive” motion—unless there is something
special about Castro’s case.
The Government argues that there is something special:
Castro failed to appeal the 1994 recharacterization. Accord-
ing to the Government, that fact makes the 1994 recharacter-

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Opinion of the Court
ization valid as a matter of “law of the case.” And, since
the 1994 recharacterization is valid, the 1997 § 2255 motion
is Castro’s second, not his first.
We do not agree. No Circuit that has considered whether
to treat a § 2255 motion as successive (based on a prior un-
warned recharacterization) has found that the litigant’s fail-
ure to challenge that recharacterization makes a difference.
See Palmer, supra, at 1147; see also Henderson, 264 F. 3d,
at 711–712; Raineri, 233 F. 3d, at 100; In re Shelton, supra,
at 622. That is not surprising, for the very point of the
warning is to help the pro se litigant understand not only
(1) whether he should withdraw or amend his motion, but
also (2) whether he should contest the recharacterization,
say, on appeal. The “lack of warning” prevents his making
an informed judgment in respect to the latter just as it does
in respect to the former. Indeed, an unwarned pro se liti-
gant’s failure to appeal a recharacterization simply under-
scores the practical importance of providing the warning.
Hence, an unwarned recharacterization cannot count as a
§ 2255 motion for purposes of the “second or successive” pro-
vision, whether the unwarned pro se litigant does, or does
not, take an appeal.
The law of the case doctrine cannot pose an insurmount-
able obstacle to our reaching this conclusion. Assuming for
argument’s sake that the doctrine applies here, it simply
“expresses” common judicial “practice”; it does not “limit”
the courts’ power. See Messenger v. Anderson, 225 U. S.
436, 444 (1912) (Holmes, J.). It cannot prohibit a court from
disregarding an earlier holding in an appropriate case which,
for the reasons set forth, we find this case to be.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
So ordered.

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Opinion of Scalia, J.
Justice Scalia, with whom Justice Thomas joins, con-
curring in part and concurring in the judgment.
I concur in Parts I and II of the Court’s opinion and in
the judgment of the Court. I also agree that this Court’s
consideration of Castro’s challenge to the status of his re-
characterized motion is neither barred by nor necessarily re-
solved by the doctrine of law of the case.
I write separately because I disagree with the Court’s
laissez-faire attitude toward recharacterization. The Court
promulgates a new procedure to be followed if the district
court desires the recharacterized motion to count against the
pro se litigant as a first 28 U. S. C. § 2255 motion in later
litigation. (This procedure, by the way, can be ignored with
impunity by a court bent upon aiding pro se litigants at all
costs; the only consequence will be that the litigants’ later
§ 2255 submissions cannot be deemed “second or succes-
sive.”) The Court does not, however, place any limits on
when recharacterization may occur, but to the contrary
treats it as a routine practice which may be employed “to
avoid an unnecessary dismissal,” “to avoid inappropriately
stringent application of formal labeling requirements,” or “to
create a better correspondence between the substance of a
pro se motion’s claim and its underlying legal basis.” Ante,
at 381–382. The Court does not address whether Castro’s
motion filed under Federal Rule of Criminal Procedure 33
should have been recharacterized, and its discussion scrupu-
lously avoids placing any limits on the circumstances in
which district courts are permitted to recharacterize. That
is particularly regrettable since the Court’s new recharacter-
ization procedure does not include an option for the pro se
litigant to insist that the district court rule on his motion as
filed; and gives scant indication of what might be a meritori-
ous ground for contesting the recharacterization on appeal.
In my view, this approach gives too little regard to the
exceptional nature of recharacterization within an adversar-

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386 CASTRO v. UNITED STATES
Opinion of Scalia, J.
ial system, and neglects the harm that may be caused pro se
litigants even when courts do comply with the Court’s newly
minted procedure. The practice of judicial recharacteriza-
tion of pro se litigants’ motions is a mutation of the principle
that the allegations of a pro se litigant’s complaint are to
be held “to less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U. S. 519, 520
(1972) (per curiam). “Liberal construction” of pro se plead-
ings is merely an embellishment of the notice-pleading stand-
ard set forth in the Federal Rules of Civil Procedure, and
thus is consistent with the general principle of American ju-
risprudence that “the party who brings a suit is master to
decide what law he will rely upon.” The Fair v. Kohler
Die & Specialty Co., 228 U. S. 22, 25 (1913). Our adversary
system is designed around the premise that the parties know
what is best for them, and are responsible for advancing the
facts and arguments entitling them to relief.
Recharacterization is unlike “liberal construction,” in that
it requires a court deliberately to override the pro se liti-
gant’s choice of procedural vehicle for his claim. It is thus
a paternalistic judicial exception to the principle of party
self-determination, born of the belief that the “parties know
better” assumption does not hold true for pro se prisoner
litigants.
I am frankly not enamored of any departure from our tra-
ditional adversarial principles. It is not the job of a federal
court to create a “better correspondence” between the sub-
stance of a claim and its underlying procedural basis. But
if departure from traditional adversarial principles is to be
allowed, it should certainly not occur in any situation where
there is a risk that the patronized litigant will be harmed
rather than assisted by the court’s intervention. It is not
just a matter of whether the litigant is more likely, or even
much more likely, to be helped rather than harmed. For
the overriding rule of judicial intervention must be “First,
do no harm.” The injustice caused by letting the litigant’s

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own mistake lie is regrettable, but incomparably less than
the injustice of producing prejudice through the court’s
intervention.
The risk of harming the litigant always exists when the
court recharacterizes into a first § 2255 motion a claim that
is procedurally or substantively deficient in the manner filed.
The court essentially substitutes the litigant’s ability to
bring his merits claim now, for the litigant’s later ability to
bring the same claim (or any other claim), perhaps with
stronger evidence. For the later § 2255 motion will then be
burdened by the limitations on second or successive petitions
imposed by the Antiterrorism and Effective Death Penalty
Act of 1996, 110 Stat. 1214. A pro se litigant whose non-
§ 2255 motion is dismissed on procedural grounds and one
whose recharacterized § 2255 claim is denied on the merits
both end up as losers in their particular actions, but the loser
on procedure is better off because he is not stuck with the
consequences of a § 2255 motion that he never filed.
It would be an inadequate response to this concern to state
that district courts should recharacterize into first § 2255 mo-
tions only when doing so is (1) procedurally necessary (2) to
grant relief on the merits of the underlying claim. Ensuring
that these conditions are met would often enmesh district
courts in fact- and labor-intensive inquiries. It is an ineffi-
cient use of judicial resources to analyze the merits of every
claim brought by means of a questionable procedural vehicle
simply in order to determine whether to recharacterize—
particularly in the common situation in which entitlement to
relief turns on resolution of disputed facts. Moreover, even
after that expenditure of effort the district court cannot be
certain it is not prejudicing the litigant: the court of appeals
may not agree with it on the merits of the claim.
In other words, even fully informed district courts that try
their best not to harm pro se litigants by recharacterizing
may nonetheless end up doing so because they cannot predict
and protect against every possible adverse effect that may

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flow from recharacterization. But if district courts are un-
able to provide this sort of protection, they should not re-
characterize into first § 2255 motions at all. This option is
available under the Court’s opinion, even though the opinion
does not prescribe it.
The Court today relieves Castro of the consequences of
the recharacterization (to wit, causing his current § 2255 mo-
tion to be dismissed as “second or successive”) because he
was not given the warning that its opinion prescribes. I
reach the same result for a different reason. Even if one
does not agree with me that, because of the risk involved,
pleadings should never be recharacterized into first § 2255
motions, surely one must agree that running the risk is un-
justified when there is nothing whatever to be gained by the
recharacterization. That is the situation here. Castro’s
Rule 33 motion was valid as a procedural matter, and the
claim it raised was no weaker on the merits when presented
under Rule 33 than when presented under § 2255. The re-
characterization was therefore unquestionably improper, and
Castro should be relieved of its consequences.
Accordingly, I concur in the judgment of the Court.