388
Opinion of Scalia, J.
flow from recharacterization. But if district courts are unable 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 motion 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 unjustified 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.
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