     Case: 12-40905       Document: 00512320496         Page: 1     Date Filed: 07/25/2013




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

                                                                            FILED
                                                                            July 25, 2013
                                     No. 12-40905
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAFAEL AGUSTO FELIZ, also known as Rafael Feliz-Martinez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1638-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Rafael Agusto Feliz, federal prisoner # 50658-054, pleaded guilty to being
illegally present in the country after having been deported and received a 41-
month prison term. He did not file a direct appeal, but nearly five months after
judgment was entered, he filed a postconviction motion invoking Federal Rule
of Civil Procedure 60(b) among other authorities. He sought relief on the basis
that he should have received a shorter sentence under the fast track program
and because of his cultural assimilation. He also challenged some of the offense-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40905     Document: 00512320496       Page: 2   Date Filed: 07/25/2013

                                    No. 12-40905

level enhancements he received, asserted that his rights to equal protection and
due process had been violated, and alleged that he received ineffective assistance
of counsel.
      The district court interpreted Feliz’s motion as seeking relief based on
Rule 60(b) and explained that the Federal Rules of Civil Procedure were
inapplicable to criminal proceedings. Though the court noted that Feliz raised
“constitutional questions,” it explained that Feliz did “not seek relief pursuant
to [28 U.S.C.] § 2255.” It denied the motion.
      Feliz contends that the district court should have construed his motion as
a motion for postconviction relief under § 2255. He also raises arguments
challenging his sentence similar to those he raised in the district court.
      Courts must liberally construe pleadings filed by pro se litigants, and it is
the substance of those pleadings, rather than their labels, that is determinative.
Hernandez v. Thaler, 630 F.3d 420, 426-27 (5th Cir. 2011). Feliz’s motion raised
purported sentencing errors and asserted due process, equal protection, and
ineffective assistance of counsel claims, claims which are properly presented in
a § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000)
(explaining that a pleading challenging errors that occurred at a federal
prisoner’s trial or sentencing should be construed as a § 2255 motion). Moreover,
there are no procedural impediments to construing his motion as arising under
§ 2255. He filed his motion in the same court that sentenced him and has not
filed a previous § 2255 motion. See § 2255(a), (h). Finally, any § 2255 motion
that Feliz would file now would likely be untimely. See § 2255(f).
      The district court’s judgment is VACATED and the case is REMANDED.
On remand, the district court should advise Feliz of its intent to recharacterize
the motion as a § 2255 motion, inform him of the consequences that the
recharacterization will have on subsequent § 2255 motions, and provide him
with an opportunity to withdraw or amend the motion. See Castro v. United
States, 540 U.S. 375, 383 (2003).

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