           Case: 14-13500   Date Filed: 05/26/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13500
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:13-cr-00041-RH-GRJ-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

ALTON EUGENE DIGGS,


                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                             (May 26, 2015)

Before HULL, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 14-13500      Date Filed: 05/26/2015   Page: 2 of 6


      Alton Diggs appeals pro se the denial of his motion for an out-of-time

appeal based on the alleged failure of trial counsel to file a notice of appeal. The

district court treated Diggs’s motion as a request for an extension of time to file a

notice of appeal and denied the motion as untimely. See Fed. R. App. P. 4(b)(4).

Because the district court should have construed Diggs’s motion as seeking to

vacate, set aside, or correct his sentence, 28 U.S.C. § 2255, we vacate and remand

for the district court to determine whether Diggs is entitled to an out-of-time appeal

on the ground that trial counsel was ineffective for failing to comply with Diggs’s

instruction to pursue a direct appeal.

                                I. BACKGROUND

      Diggs entered an agreement to plead guilty to conspiring to possess with

intent to distribute cocaine and cocaine base. 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii)–(iii), 846. The plea agreement stated that Diggs “face[d], due to a

prior drug felony conviction, a minimum of twenty years imprisonment,” see 21

U.S.C. § 841(b)(1)(A); “the sentence imposed [was] left solely to the discretion of

the District Court”; and Diggs and the government “reserve[d] the right to appeal

any sentence imposed.” Diggs’s presentence investigation report provided that

Diggs had an offense level of 34 and, with a criminal history score of VI, had an

advisory guideline range of 262 to 327 months of imprisonment. The government




                                           2
               Case: 14-13500       Date Filed: 05/26/2015     Page: 3 of 6


moved for a downward departure based on Diggs’s substantial assistance. See

United States Sentencing Guidelines Manual § 5K1.1 (Nov. 2012).

       On January 14, 2014, the district court granted the motion of the government

and departed downward to sentence Diggs to 10 years of imprisonment. The

district court advised Diggs that he had a right to appeal; twice remarked to Diggs

that he had to file his notice of appeal within 14 days; and urged Diggs to “talk

with [his] lawyer . . . to make sure that [he] ha[d] a clear understanding of whether

[Diggs] [did] or [did] not wish to appeal . . . .” See Fed. R. App. P. 4(b)(1)(A)(i).

The district court also advised trial counsel to either “file the notice and go

forward” or to “write [Diggs] a letter to make sure that there is no

misunderstanding and to bring home the importance of the decision.” The district

court explained that, if Diggs chose to appeal, his attorney could file a notice of

appeal or “[t]he clerk of court [could] file a notice at [Diggs’s] request.”

       On January 22, 2014, Diggs submitted a letter to the district court that

requested a reduction of his sentence. The district court interpreted the letter as

seeking reconsideration of Diggs’s sentence and denied relief on January 28, 2014.

       On May 28, 2014, Diggs filed pro se a motion for leave to file an out-of-

time appeal. In the motion, Diggs alleged that he was “denied the opportunity to

file a direct appeal because of his trial counsel’s failure to fulfill his . . . duty to

consult with [Diggs] about [an] appeal[] . . . even though [Diggs] was clear in


                                             3
                Case: 14-13500      Date Filed: 05/26/2015      Page: 4 of 6


communicatin[g] to his counsel the desire to file a direct appeal in the case.”

Because Diggs, “being untrained in the law, [did not] know . . . the correct method

. . . to request an Out-of-Time appeal . . ., [he] move[d] the Court to accept this

Motion or to look behind the title of this Motion and to apply such vehicle as

[would] permit [his] journey to a direct appeal.” Diggs reiterated that, “[i]f . . . this

Motion . . . is not sufficient for the Court to act, . . . [that it] look behind the title of

the motion and recharacterize it as such pleading as will permit the Court to act

thereon.” Diggs also “specifically move[d] the Court to recharacterize this action

as a 28 U.S.C. § 2255 should that be the case; as 28 U.S.C. § 2255 appears to be

the most correct method by which to raise this issue.”

       The district court treated Diggs’s motion as requesting an extension of time

to file an appeal, see Fed. R. App. P. 4(b)(4), and denied that motion as untimely.

The district court ruled that Diggs failed to move for an extension of time within

30 days of the time to file a notice of appeal, whether that deadline was calculated

from the entry of his sentence or the denial of his motion for reconsideration. Even

if “Diggs’s allegation that he clearly communicated to his attorney that he wished

to appeal” were true and “would constitute excusable neglect for good cause,” the

district court explained, Rule 4(b)(4) “prohibit[ed] an extension of the length Mr.

Diggs . . . requested.”




                                              4
               Case: 14-13500     Date Filed: 05/26/2015    Page: 5 of 6


                           II. STANDARD OF REVIEW

      We review de novo the conclusions of law by the district court in a

proceeding for postconviction relief. Gomez-Diaz v. United States, 433 F.3d 788,

790 (11th Cir. 2005).

                                 III. DISCUSSION

      The district court misconstrued Diggs’s motion. The district court failed to

construe a pleading filed by Diggs, a pro se litigant, liberally, Winthrop-Redin v.

United States, 767 F.3d 1210, 1215 (11th Cir. 2014), and to “determine whether

[Diggs’s] motion [was], in effect, cognizable under a different remedial statutory

framework,” United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990).

Diggs sought an out-of-time appeal on the ground that trial counsel was ineffective

for failing to file a notice of appeal, which federal courts adjudicate routinely in a

motion to vacate, set aside, or correct a sentence, 28 U.S.C. § 2255. See Otero v.

United States, 499 F.3d 1267 (11th Cir. 2007); Gomez-Diaz, 433 F.3d 788;

Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995). And the district court

ignored Diggs’s explicit entreaties to “look behind the title of []his Motion” and

“recharacterize []his action as a 28 U.S.C. § 2255” because that “appear[ed] to be

the most correct method by which to raise []his issue.” Diggs alleged that he was

“denied the opportunity to file a direct appeal because of his trial counsel’s failure”

to file a notice of appeal. “When a defendant loses the opportunity to appeal due to


                                           5
               Case: 14-13500      Date Filed: 05/26/2015     Page: 6 of 6


constitutionally defective counsel, . . . [he should be] put . . . back in the position

he would have been in had his lawyer filed a timely notice of appeal.” McIver v.

United States, 307 F.3d 1327, 1331 (11th Cir. 2002) (internal quotation marks and

citation omitted). If trial counsel ignored Diggs’s “clear . . . [instruction] to file a

direct appeal,” he is entitled to the “entry of a new judgment for the purpose of

permitting the perfection of an appeal,” id. at 1330 (citing Rodriquez v. United

States, 395 U.S. 327, 332, 89 S. Ct. 1715, 1718 (1969)), regardless of whether

“there would have been any viable grounds for an appeal,” Montemoino, 68 F.3d at

417. Because the district court erred when it failed to treat Diggs’s motion as filed

under section 2255, we vacate and remand for further proceedings.

                                  IV. CONCLUSION

       We VACATE the decision that treated Diggs’s motion as requesting an

extension of time to file a notice of appeal and denied that motion as untimely. We

REMAND with instructions for the district court to construe Diggs’s motion as

seeking to vacate, set aside, or correct his sentence, 28 U.S.C. § 2255, and to

conduct further proceedings to determine whether Diggs’s trial counsel was

ineffective for failing to file a notice of appeal, which would entitle Diggs to an

out-of-time appeal.




                                            6
