     Case: 18-10094      Document: 00514611177         Page: 1    Date Filed: 08/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 18-10094
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 22, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

FRANCISCO MALDANADO ANCELMO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:15-CR-129-14


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Francisco Maldonado Ancelmo, federal prisoner # 50914-177, is serving
a 260-month term of imprisonment, which was imposed following his jury trial
conviction of conspiracy to possess with intent to distribute methamphetamine.
He did not pursue a direct appeal.
       In December 2017, Ancelmo filed a motion in which he requested that
the district court conduct an evidentiary hearing to determine whether his trial


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10094     Document: 00514611177     Page: 2   Date Filed: 08/22/2018


                                  No. 18-10094

counsel had provided constitutionally adequate representation. Among other
claims, Ancelmo contended that his trial counsel had violated his due process
rights by failing to file a notice of appeal. The district court denied the motion
for an evidentiary hearing, and this appeal followed.
      Ancelmo has filed a pro se brief in which he raises closely related claims
that his constitutional rights were abridged because his trial counsel was not
fit to serve as his attorney and provided incompetent representation in his
criminal case. He asserts that the district court should have conducted an
evidentiary hearing.    Ancelmo indicates that he is seeking an out-of-time
appeal.
      “We have frequently instructed district courts to determine the true
nature of a pleading by its substance, not its label.” Armstrong v. Capshaw,
Goss & Bowers, LLP, 404 F.3d 933, 936 (5th Cir. 2005). Taken as a whole,
Ancelmo’s district court pleadings indicate 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. See Tolliver v. Dobre,
211 F.3d 876, 877 (5th Cir. 2000). In view of the foregoing, the district court
should have liberally construed Ancelmo’s motion for an evidentiary hearing
as a § 2255 motion. See Morrow v. FBI, 2 F.3d 642, 643 n.2 (5th Cir. 1993).
      Accordingly, we vacate the judgment of the district court and remand for
further proceedings. We remind the district court that, on remand, it should
comply with Castro v. United States, 540 U.S. 375, 381-83 (2003), by notifying
Ancelmo that it intends to recharacterize his motion for an evidentiary hearing
as a § 2255 motion, warning him that any subsequent § 2255 motion will be
subject to second or successive restrictions, and providing Ancelmo an
opportunity to withdraw his motion or amend the motion to include all of his




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                                No. 18-10094

claims. We express no opinion as to the merit of Ancelmo’s claims, nor do we
express an opinion as to whether the claims are timely under § 2255(f).
     VACATED AND REMANDED.




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