     Case: 17-40330      Document: 00514857538        Page: 1     Date Filed: 03/01/2019




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

                                   No. 17-40330                                  FILED
                                 Summary Calendar                            March 1, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

JUAN GABRIEL CISNEROS,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CV-279
                              USDC No. 4:95-CR-196-7




Before SMITH, WIENER, and WILLETT, Circuit Judges
PER CURIAM: *

      Juan Cisneros, federal prisoner #40178-079, filed a 28 U.S.C. § 2255


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 17-40330

motion to challenge his guilty-plea conviction of conspiring to aid and assist in
the escape of persons in the custody of the Attorney General, for which he was
sentenced to 24 months to run consecutively to a sentence of life that Cisneros
had received in another criminal case. The district court recharacterized the
§ 2255 motion as a motion under Federal Rule of Civil Procedure 60(b) and
denied it; the court also addressed the merits of numerous claims raised in
Cisneros’s § 2255 motion and determined that they lacked merit. This court
granted a certificate of appealability (“COA”) on several issues.

      As a preliminary matter, Cisneros has moved this court to take judicial
notice of an order issued by the district court in a similar case involving a
different defendant. We may take judicial notice of our own records or those of
inferior courts. See ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n.2
(5th Cir. Unit B July 1981). Accordingly, we grant Cisneros’s motion, although
it is unnecessary for us to consider the order in resolving this appeal.

      On the record before us, we agree with Cisneros that the district court
erred to the extent that it treated his filing as a successive § 2255 motion. That
is because, in connection with a Rule 60(b)-denominated motion filed by Cis-
neros in 1996, which the district court recharacterized as a § 2255 motion, we
see no indication in the record that Cisneros was provided the warnings re-
quired under Castro v. United States, 540 U.S. 375 (2003). Under Castro, when
a federal court recharacterizes a pro se litigant’s filing as a first § 2255 motion,
it is required to
      notify the pro se litigant that it intends to recharacterize the plead-
      ing, warn the litigant that this recharacterization means that any
      subsequent § 2255 motion will be subject to the restrictions on ‘sec-
      ond or successive’ motions, and provide the litigant an opportunity
      to withdraw the motion or to amend it so that it contains all the
      § 2255 claims he believes he has.
Castro, 540 U.S. at 383. Where a court recharacterizes a motion as a first


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                                 No. 17-40330

§ 2255 motion without providing the protections required by Castro, “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.” Id.

      We also take note of an error in a related case. In April 1998, Cisneros
filed a § 2255 motion, which the district court denied after finding that Cis-
neros’s case had already been dismissed. Cisneros filed two motions for recon-
sideration of that order, contending that his April 1998 § 2255 motion was im-
properly docketed in the civil case associated with his challenge to his convic-
tion for conspiracy to escape. The district court denied both of those motions.
Cisneros then sought a COA from this court on the denial of reconsideration.
In an order issued before Castro, we denied that COA motion based on a deter-
mination that Cisneros’s April 1998 § 2255 motion was an unauthorized, suc-
cessive motion. See United States v. Cisneros, No. 99-40357 (Mar. 2, 2000)
(unpublished). Because Cisneros’s first post-conviction motion does not count
as an initial § 2255 motion, see Castro, 540 U.S. at 383, his April 1998 motion
should not have been treated as successive.

      Further, although federal 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,” id. at 381, we agree with
Cisneros that, based on the record before us, the district court erred in doing
so with respect to the instant § 2255 motion. Because § 2255 provides the pri-
mary means of collaterally attacking a federal conviction or sentence, and Cis-
neros’s § 2255 motion was not successive, he appropriately proceeded under
§ 2255 to attack his conviction and sentence on the charge of conspiracy to
escape. See Reyes-Requena v. United States, 243 F.3d 893, 897−99 (5th Cir.
2001); Tolliver v. Dobre, 211 F.3d 876, 877−78 (5th Cir. 2000).

      Finally, Cisneros maintains that the district court erred in denying relief


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                                  No. 17-40330

on his claims that his trial counsel was ineffective in connection with his guilty
plea and for failing to file a notice of appeal. Cisneros avers that the district
court should have conducted an evidentiary hearing on those claims. Because
“the motion, files, and records” do not “conclusively show that [Cisneros] is
entitled to no relief” on the above claims, we agree that the district court erred
to the extent it denied relief based on the merits of the claims. United States
v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992); see United States v. Tapp,
491 F.3d 263, 266 (5th Cir. 2007).

      The judgment is VACATED and REMANDED. We place no limitation
on the matters that the district court can consider on remand, and we intimate
no view on how it should rule on any issue. The motion for judicial notice is
GRANTED.




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