Fourth Circuit holds that district court must give pro se petitioner notice of recharacterization of pleading as 2255 petition

In United States v. Blackstock, the Fourth circuit overruled its opinion in United States v.Emmanuel, 288 F.3d 644 (4th Cir. 2002), which held that a district court may not recharacterize a prisoner’s filing as a § 2255 petition without notifying the prisoner of its intent to recharacterize the motion, warning the prisoner of the effects of recharacterization, and giving the prisoner an opportunity to withdraw or amend his motion. However, the Emmanuel court created an exception "[i]n cases where no adverse consequences will ensue, the district court need not give the movant any notice prior to proceeding with the recharacterization." The Fourth Circuit has now rejected this exception:

Accordingly, we conclude that the Supreme Court’s decision in Castro effectively overruled Emmanuel’s exception to the notice requirement. Under Castro, notice was required before the recharacterization of Blackstock’s 2001 discovery motion; because no notice of the recharacterization was given, the 2001 motion cannot be counted as Blackstock’s first § 2255 petition.

In the Castro opinion, SCOTUS held the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant 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 opportunity to withdraw the motion or to amend it so that it contains all the§ 2255 claims he believes he has.