     Case: 13-40201      Document: 00512492440         Page: 1    Date Filed: 01/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                        No. 13-40201                         January 8, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff – Appellee,
v.

JULIO CESAR BERNAL,

                                                 Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           U.S.D.C. No. 7:11-CR-1384-1


Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Julio Cesar Bernal appeals the district court’s denial of his motion for
leave to file an out-of-time appeal. We VACATE and REMAND.
                                   I.    Background
       Bernal was charged in a two-count indictment with: (1) conspiracy to
possess with intent to distribute 100 kilograms or more of marijuana in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) (“Count One”); and (2)
possession with intent to distribute 100 kilograms or more of marijuana in


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-40201
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (“Count
Two”).   After Bernal pleaded guilty to Count Two pursuant to a plea
agreement, the district court sentenced Bernal to serve the statutory minimum
of sixty months of imprisonment followed by four years of supervised release.
Judgment was entered on March 23, 2012.
      On July 23, 2012, Bernal moved pro se for leave to file an out-of-time
appeal and for appointment of counsel. In his motion, Bernal stated, among
other things, that he had been trying to file a notice of appeal, that he had not
spoken with his attorney and “was alone,” and that he had a limited grasp of
English and of the law. He acknowledged that he had not complied with
Federal Rule of Appellate Procedure 4(b) (“Appellate Rule 4(b)”) and requested
that the district court treat his motion as a “Belated Appeal, and not a 28
U.S.C[. §] 2255 motion.”
      After the district court referred the motion to the magistrate judge, the
magistrate judge recommended denial of Bernal’s request for leave to file an
out-of-time appeal, but granted his request for the appointment of counsel. The
magistrate judge did not examine whether the motion should be construed as
a § 2255 motion, analyzing only the question of timeliness under Appellate
Rule 4(b). In this regard, he correctly concluded that the time for Appellate
Rule 4(b) motions had passed.
      Now represented by counsel, Bernal filed objections to the magistrate
judge’s report and recommendation, arguing that his motion should be
construed as a motion pursuant to 28 U.S.C. § 2255 for an out-of-time appeal
based on ineffective assistance of counsel. In the alternative, Bernal asked for
an evidentiary hearing. Over Bernal’s objection, the district court adopted the
report and recommendation of the magistrate judge and denied Bernal’s
motion for leave to file an out-of-time appeal. Bernal appeals the denial of his
motion. The district court’s order did not conduct an evidentiary hearing and
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                                     No. 13-40201
did not address the § 2255 argument except by stating “after appropriate
review   of   Defendant’s    objections       [to   the   magistrate’s   report   and
recommendations] . . . the conclusions [in that document] should be adopted.”
                               II.     Discussion
      Appellate Rule 4(b)(1)(A) provides that, in a criminal case, a defendant
must file a notice of appeal within fourteen days of the entry of the judgment
being appealed. The district court may extend the time to file for thirty days
upon a finding of excusable neglect or good cause. See FED. R. APP. P. 4(b)(4).
Because these time limits are not statutorily imposed, they are “mandatory,
but not jurisdictional” and may be waived. United States v. Martinez, 496 F.3d
387, 388 (5th Cir. 2007).
      Bernal does not challenge the district court’s enforcement of these time
limitations. Indeed, this court may not reverse a district court’s decision to do
so. See United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006).
Rather, he argues that the district court should have construed his filing as a
motion pursuant to 28 U.S.C. § 2255 for an out-of-time appeal based on
ineffective assistance of counsel.
      A claim of ineffective assistance of counsel for failing to timely file a
notice of appeal is properly asserted in a § 2255 motion and the remedy is an
out-of-time appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 483–86 (2000); see
also United States v. Tapp, 491 F.3d 263, 265–66 (5th Cir. 2007); United States
v. West, 240 F.3d 456, 459 (5th Cir. 2001) (“Since the 1960s, our court, pursuant
to a § 2255 motion, has permitted an out-of-time appeal when a defendant was
denied assistance of counsel on appeal, through counsel’s failure to perfect an
appeal.”).
      The Government contends that Bernal waived his right to § 2255 relief
by originally requesting that the district court treat his motion as a “Belated
Appeal, and not a 28 U.S.C[. §] 2255 motion.” However, the pleadings of pro
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se litigants should be construed liberally. See Erickson v. Pardus, 551 U.S. 89,
94 (2007). “It is the substance of the relief sought by a pro se pleading, not the
label that the [movant] has attached to it, that determines [its] true nature
and operative effect . . . .” Hernandez v. Thaler, 630 F.3d 420, 426–27 (5th Cir.
2011). In his motion, Bernal advised the district court that he had been trying
to file a notice of appeal, but had been unable to consult with his attorney and
“was alone.”        In his objection to the magistrate judge’s report and
recommendation, Bernal made it clear that he was seeking relief under 28
U.S.C. § 2255 and that he was asserting that he had been deprived of the
effective assistance of counsel in exercising his right to appeal.
       We conclude that Bernal’s pro se motion should have been liberally
construed as a § 2255 motion. We have previously required a district court to
recharacterize as a § 2255 motion a request for an out-of-time appeal that in
substance brought an ineffective assistance of counsel claim. See United States
v. Moron-Solis, 388 F. App’x 443, 444–45 (5th Cir. 2010) (unpublished); United
States v. Flores, 380 F. App’x 371, 372 (5th Cir. 2010) (unpublished). 1 We
express no opinion on the merits of Bernal’s constitutional claim, such as
whether he actually asked counsel to file an appeal or whether counsel failed
to consult with his client. See Flores-Ortega, 528 U.S. at 477–78. However, the
interests of justice require the district court to give Bernal’s claims additional
consideration under § 2255. See Castro v. United States, 540 U.S. 375, 381–83
(2003). We therefore remand to the district court for further proceedings
consistent herewith.
       VACATED and REMANDED.




       1While Moron-Solis and Flores are not “controlling precedent,” they “may be [cited as]
persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
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