     Case: 18-10492         Document: 00514752092         Page: 1    Date Filed: 12/07/2018




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

                                                                                   FILED
                                      No. 18-10492                         December 7, 2018
                                    Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

CHARLES HUNTER,

                 Defendant - Appellant




                     Appeals from the United States District Court
                          for the Northern District of Texas
                                USDC No. 4:16-CR-28-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Charles Hunter, federal prisoner # 25618-177, pleaded guilty to aiding
and abetting possession with intent to distribute methamphetamine and was
sentenced to 240 months of imprisonment and a three-year term of supervised
release. We affirmed on direct appeal. 1 Hunter then filed a petition for judicial
notice of adjudicative facts, alleging that his prosecution was improper because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   United States v. Hunter, 694 F. App’x 270, 270–71 (5th Cir. 2017).
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                                       No. 18-10492
the government attorneys involved in his case lacked sufficient written
authority for their appointments. The district court construed Hunter’s motion
as a civil rights complaint, and denied the motion as frivolous and for failure
to state a claim under 28 U.S.C. § 1915A. On appeal, Hunter challenges the
district court’s denial of the motion and its failure to conduct an evidentiary
hearing.
       “A prisoner’s complaint against a governmental entity or an officer or
employee of a governmental entity may be dismissed as frivolous, malicious, or
for failing to state a claim upon which relief may be granted.” 2 We will affirm
the dismissal of a complaint as frivolous “if it lacks an arguable basis in law or
fact,” reviewing for abuse of discretion. 3 Having reviewed Hunter’s pleading
and supporting documentation, we agree that Hunter’s pleading was frivolous
under § 1915A, and that the district court was not required to conduct an
evidentiary hearing. 4
       We recognize that a district court must “determine the true nature of a
pleading by its substance, not its label.” 5 Hunter’s pleading indicates a desire
to attack the constitutionality of his criminal conviction and sentence, and the
primary means of doing so is a motion under 28 U.S.C. § 2255. 6 In similar
circumstances, we have sometimes remanded to require a district court to
recharacterize a pro se pleading as a § 2255 motion. 7 Here, though, Hunter was
not prejudiced by the district court’s decision to characterize his “petition for


       2 Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
       3 Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
       4 See Wyatt v. Thaler, 405 F. App’x 846, 848 (5th Cir. 2010) (per curiam) (citing Eason

v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994)).
       5 Armstrong v. Capshaw, Goss & Bowers, LLP, 404 F.3d 933, 936 (5th Cir. 2005).
       6 See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (per curiam).
       7 See United States v. Ancelmo, No. 18-10094, 2018 WL 4030736, at *1 (5th Cir. Aug.

22, 2018) (per curiam); United States v. Bernal, 551 F. App’x 177, 179 (5th Cir. 2014) (per
curiam); United States v. Feliz, 537 F. App’x 406, 406–07 (5th Cir. 2013) (per curiam); United
States v. Flores, 380 F. App’x 371, 371–72 (5th Cir. 2010) (per curiam).
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                                     No. 18-10492
judicial notice” as a civil rights complaint rather than a § 2255 motion. 8 The
district court concluded that Hunter’s legal claims lacked arguable basis in law
or fact, and we agree, regardless of how Hunter’s pleading was characterized.
      We affirm the decision of the district court.




      8  Cf. United States v. Roundtree, 624 F. App’x 220, 221 (5th Cir. 2015) (per curiam)
(concluding that a prisoner “ha[d] not shown that he was prejudiced by the district court’s
failure to construe his motions as a § 2255 motion”).
                                            3
