United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the court on Damion Wells's motion for
reconsideration, Filing No. 260, of the court's
earlier order, Filing No. 258, denying his
“Motion to Consider Quantity of Drugs and Review
Enhancement, ” Filing No. 257. The court
construed the defendant's earlier motion as a motion to
vacate under 28 U.S.C. § 2255.
motion, Wells sought review of a determination of drug
quantity that allegedly affected his sentence. Wells now
contends that the court's jurisdiction over the motion
was based on the presence of a federal question under 28
U.S.C. § 1331 and states that he presented a civil
rights complaint. He cites the case of Spencer v.
Haynes, 774 F.3d 467, 471 (8th Cir. 2014), for the
proposition that a district court should not recharacterize a
pleading without first obtaining the consent of the
petitioner. That case is inapposite. In Spencer, the
Eighth Circuit Court of Appeals found “an appropriate
construction would be to recharacterize Spencer's claim
into the correct procedural vehicle for the claim asserted,
” which in that case was a Bivens claim for an
Eighth Amendment violation. Id. at 471. The Eighth
Circuit noted, however, that a writ of habeas corpus was the
appropriate remedy for a challenge to “the validity of
his conviction or the length of his detention.”
Id. at 469.
Castro v. United States, 540 U.S. 375, 381 (2003),
the Supreme Court explained that “[f]ederal 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.” One reason for such recharacterization is
“to create a better correspondence between the
substance of a pro se motion's claim and its underlying
legal basis.” Id.; see Smith v.
Hobbs, 490 F.App'x 833, 834 (8th Cir. 2012). In
Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973),
the Supreme Court delineated what constitutes a habeas action
as opposed to a 42 U.S.C. § 1983 claim. The
prisoner's label is not controlling. See
id. The essence of habeas corpus is an attack by a
person in custody upon the legality of that custody.
Id. at 484. “It is the substance of the relief
sought which counts.” Kruger v. Erickson, 77
F.3d 1071, 1073 (8th Cir. 1996).
certain circumstances, the court should obtain consent for
recharacterization on account of the fact that “a
habeas corpus action and a prisoner civil rights suit differ
in a variety of respects-such as the proper defendant, filing
fees, the means of collecting them, and restrictions on
future filings-that may make recharacterization impossible
or, if possible, disadvantageous to the prisoner compared to
a dismissal without prejudice of his petition for habeas
corpus.” Robinson v. Sherrod, 631 F.3d 839,
841 (7th Cir. 2011) (involving the recharacterization of a
prisoner's petition for habeas corpus as a prisoner civil
rights complaint); see also Kruger v.
Erickson, 77 F.3d 1071, 1073-74 (8th Cir. 1996)
(discussing the fundamental differences between a civil
rights action and a habeas action). Castro held that
when a district court recharacterizes a pro se litigant's
motion as a first § 2255 motion, the court must notify
the litigant, warn him that any subsequent § 2255 motion
will be subject to the restrictions on “second or
successive” motions, and provide the litigant with an
opportunity to withdraw or amend the motion. Smith,
490 F.App'x at 835 (quoting Castro, 540 U.S. at
383). However, when a petitioner seeks relief
concerning the execution of his sentence-relief that can only
be had through habeas corpus-the district court properly
treats the motion as a habeas corpus application.
See Smith, 490 F.App'x at 835; see
also United States v. Lambros, 404 F.3d 1034,
1036 (8th Cir. 2005). Warnings are not required when a
petitioner would not be prejudiced by any future erroneous
application of the second or successive bar. See, e.g.,
Settle v. United States, 4:12-CV-1534-JCH, 2012 WL
4049023 (E.D. Mo. Sept. 13, 2012) (stating that because the
motion at issue was successive, providing a Castro-type
warning and an opportunity to withdraw his motion would be of
no avail to him); Cree v. United States, 4:10-CV-25,
2010 WL 1814938 (D.N.D. May 4, 2010) (same).
not Wells's first habeas corpus petition, so the warnings
and consent required under Castro are not
implicated. On reconsideration, the court continues to
believe that Wells's claim must be treated as a
successive § 2255 petition. He does not present any
challenge to his conditions of confinement nor does he allege
any unconstitutional actions by federal officers. Though he
alludes to violations of Amendments V, VI, VIV and VIII of
the Constitution, he provides no factual details other than
to state that his sentence was enhanced for a quantity of
crack cocaine that “would not even weigh on a federal
scale.” Filing No. 257, Motion at 2.
liberally construing the motion, the court is unable to
construe the motion as asserting a civil rights
claim. Simply stated, a pro se complaint
must “allege facts sufficient to support the claims
advanced.” Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004). It is clear to the court that Wells again
challenges the validity of his conviction and the length of
his sentence. Under the circumstances, the motion for
reconsideration will be denied. Accordingly, IT IS ORDERED
that defendant's motion for reconsideration, Filing
No. 260, is denied.
 The court is not unsympathetic to
Wells's position, but lacks authority to provide Wells
the relief he seeks. After a jury trial, Wells was convicted
of possession with intent to deliver cocaine base, an offense
that carries a statutory mandatory minimum sentence of twenty
years that the court is without power to reduce. The court
has, however, advocated for clemency for Wells.
 See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971) (allowing cause of action for constitutional
violations by federal officers).
 If the court fails to get consent to
recharacterize the complaint, the remedy is that 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.'” Smith, 490
F.App'x at **1 (quoting Castro, 540 U.S. at 383)
(emphasis added in Smith).
 In fact, as noted in the court's
earlier order, Wells has submitted numerous other filings.
Filing No. 258, Memorandum and Order at 2 n.1
(noting that in addition to Wells's original § 2255
motion, this court also denied a motion to reduce his
sentence based on the crack cocaine Amendment 706, a motion
for writ of coram nobis, two motions to reduce his sentence,
and a motion to correct his sentence).
 As a person in confinement, if Wells
elects to file a civil rights action, he will be responsible
for the full filing fee, which he will be permitted to pay in
installments should the court grant his application to
proceed in forma pauperis. See28 U.S.C.
§ 1915(b)(1). In addition, his claims ...