    Case: 18-10276    Document: 00515033235     Page: 1   Date Filed: 07/15/2019




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

                                                                        FILED
                                 No. 18-10276                       July 15, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk
UNITED STATES OF AMERICA,

                  Plaintiff–Appellee,
versus

RICHARD LUKE ELAM,

                  Defendant–Appellant.



                Appeal from the United States District Court
                     for the Northern District of Texas




Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      After failing to appeal either his conviction or sentence, Richard Elam
moved for a special discovery hearing concerning the adequacy of trial counsel’s
representation. The district court denied the request and declined to recharac-
terize the discovery motion as a 28 U.S.C. § 2255 motion. Because the court
erred in failing to recharacterize, we vacate and remand.

                                        I.
      In March 2016, Elam agreed to plead guilty of conspiracy to distribute
and possess with intent to distribute methamphetamine in violation of
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                                      No. 18-10276

21 U.S.C. § 846 (2012). As part of the agreement, Elam consented to an appeal
waiver but expressly reserved the right to challenge the voluntariness of the
guilty plea and to bring a claim for ineffective assistance of counsel (“IAC”).
The district court entered judgment on July 29, 2016. Because Elam did not
directly appeal his conviction or sentence, the judgment became final on Aug-
ust 12, 2016 under Federal Rule of Appellate Procedure 4(b)(1)(A)(i). See
United States v. Plascencia, 537 F.3d 385, 388–90 (5th Cir. 2008).

       On July 10, 2017, Elam filed in the district court 1 a motion titled “Defen-
dant’s Motion Requesting SPECIAL DISCOVERY HEARING to Determine if
Level of Court-Appointed Representation was ADEQUATE, Pursuant to the
Criminal Justice Act (18 USC § 3006A).” In the motion, Elam maintained that
counsel had violated his constitutional right to effective assistance. He re-
quested that the district court order a hearing concerning whether he had
received adequate representation. He also asserted that his guilty plea was
given under duress and contended that counsel coerced the plea. He empha-
sized that counsel provides inadequate representation when he, inter alia,
neglects to (1) file motions, (2) investigate possible defenses, (3) hire experts
and investigators, (4) develop witness testimony, or (5) subpoena evidence. In
addition, Elam included a request for the appointment of counsel “for the
express purpose of filing all necessary motions/appeals” related to his IAC
claim.

       The district court denied the motion, concluding that Elam had failed to
establish that the case’s legal or factual complexity necessitated appointment
of counsel for the adequate investigation and presentation of his claim. The



       1 “[A] pro se prisoner’s habeas petition is filed . . . when he delivers the papers to
prison authorities for mailing.” Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per
curiam).
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court stressed that “a defendant is not entitled to go on a fishing expedition
prior to filing a [28 U.S.C.] § 2255 motion.”

      On October 16, 2017, Elam moved to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e). He contended that the district court
erred in denying his motion for a discovery hearing by failing to construe it as
a § 2255 motion. Elam urged that pro se filings should be liberally construed,
citing precedent from this court and others, and reiterated his intent to bring
an IAC claim. Ultimately, he requested that the court vacate its order denying
his special-discovery motion and recharacterize it as a § 2255 motion. Elam
also asked that the court grant leave to amend the motion.

      In a later order, the district court expressly declined to construe the
discovery motion as a § 2255 motion, noting that Elam had “attempted to first
secure the appointment of counsel and discovery to investigate whether a pos-
sible ineffective assistance of counsel claim may exist” even though he “could
have certainly filed a motion under § 2255.” Nonetheless, “to prevent the loss
of [Elam’s] rights to pursue an [IAC] claim under § 2255,” the court reclassified
Elam’s Rule 59(e) motion and directed him to file an amended § 2255 motion
within thirty days. The court also instructed Elam to answer each question on
a § 2255 form approved for use in the Northern District of Texas.

      Elam filed an amended § 2255 motion and a memorandum in support.
He cited two grounds for relief: (1) an IAC claim and (2) a claim that his guilty
plea was invalid because it was coerced by counsel. Elam responded “N/A” to
the question on the § 2255 form related to the timeliness of the motion.

      The district court denied the amended motion, reiterating that by filing
a discovery request, Elam “understood he was not filing a § 2255 motion.” The
court emphasized that “[t]he law does not allow Movant to engage in a fishing
expedition for evidence before filing a § 2255 motion, nor does it allow him to

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toll the one-year statute of limitations for filing a § 2255 motion simply because
he requested an attorney to research possible claims.” Ultimately, the court
construed the date Elam filed his Rule 59(e) motion as the filing date of the
habeas petition but determined that the motion was barred by the relevant
statute of limitations, 28 U.S.C. § 2255(f)(1), because the motion was filed on
October 16, 2017, more than one year after Elam’s judgment of conviction had
become final on August 12, 2016. Elam appeals.

                                        II.
      A habeas petitioner in federal custody is subject to a one-year statute of
limitations. See 28 U.S.C. § 2255(f). As relevant here, limitations runs from
“the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1).

      “Dismissal of a first federal habeas petition is a particularly serious mat-
ter, for that dismissal denies the petitioner the protections of the Great Writ
entirely, risking injury to an important interest in human liberty.” Lonchar v.
Thomas, 517 U.S. 314, 324 (1996). Consequently, a court will sometimes
recharacterize a motion filed by a pro se prisoner as a request for habeas relief
under § 2255 even though the motion is labeled differently. Castro v. United
States, 540 U.S. 375, 377 (2003).

      “[P]ro se habeas petitions are not held to the same stringent and rigorous
standards as are pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d
420, 426 (5th Cir. 2011) (per curiam) (internal quotation marks and citation
omitted); see also United States v. Torres, 163 F.3d 909, 910 n.5 (5th Cir. 1999).
Ultimately, “[i]t is the substance of the relief sought by a pro se pleading, not
the label that the petitioner has attached to it, that determines the true nature
and operative effect of a habeas filing.”     Hernandez, 630 F.3d at 426–27.
Nonetheless, a court may not
      recharacterize a pro se litigant’s motion as the litigant’s first

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       § 2255 motion unless the court informs the litigant of its intent to
       recharacterize, warns the litigant that the recharacterization will
       subject subsequent § 2255 motions to the law’s “second or succes-
       sive” restrictions, and provides the litigant with an opportunity to
       withdraw, or to amend, the filing.
Castro, 540 U.S. at 377.

                                             III.
       The decision to recharacterize a motion is discretionary. See United
States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983). We therefore review for
abuse of discretion the decision not to construe Elam’s special-discovery motion
as a § 2255 petition. See United States v. Gonzalez-Bueno, 510 F. App’x 718,
719 (10th Cir. 2013); cf. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996)
(per curiam). “A district court abuses its discretion if it bases its decision on
an error of law or a clearly erroneous assessment of the evidence.” United
States v. Smith, 417 F.3d 483, 486–87 (5th Cir. 2005) (internal quotation marks
and citation omitted).

                                              A.
       Elam asserts that “[t]he district court erred and abused its discretion by
denying [his] § 2255 [m]otion as time-barred.” He contends that by refusing to
recharacterize his special-discovery motion as a § 2255 motion, the court pre-
vented him from pursuing habeas relief on his IAC claim because any future
motion he files would be barred by § 2255(f)’s limitations. Elam also empha-
sizes that pro se litigants are entitled to have their filings liberally construed.
Consequently, he asserts that his discovery motion should be recharacterized
as a § 2255 motion so that the court can rule on its merits. 2




       2 The government chose not to participate in this case. See Letter from Wes Hendrix,
Assistant U.S. Attorney, U.S. Dep’t of Justice, to Lyle Cayce, Clerk, U.S. Court of Appeals for
the Fifth Circuit (Oct. 1, 2018).
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                                              B.
       The district court abused its discretion in declining to recharacterize
Elam’s special-discovery motion as a § 2255 motion because it failed to con-
strue the motion liberally and denied him the protections of the Great Writ.
“[W]e have frequently instructed district courts to determine the true nature
of a pleading by its substance, not its label.”                 United States v. Flores,
380 F. App’x 371, 372 (5th Cir. 2010) (per curiam) (citation omitted). 3 Elam’s
discovery motion, “although inartfully drafted, stated enough that it should
have been liberally construed as a § 2255 motion.” Flores, 380 F. App’x at 372.
Elam asserted that his constitutional right to effective assistance of counsel
had been violated, resulting in a deprivation of his liberty. He underscored
that the district court is responsible for ensuring that counsel’s representation
is adequate, and he implicitly stated seven bases for his IAC claim. He also
challenged his conviction, maintained that his guilty plea was entered under
duress, and averred that counsel coerced his guilty plea. Liberally construed,
that is enough to qualify Elam’s motion as a § 2255 motion.

       “[T]he interests of justice require the district court to further consider
the matter . . . .” Id. On remand, the court should give Elam notice that his
special-discovery motion is being construed as a § 2255 motion and should
allow a reasonable opportunity to amend or withdraw it. See Castro, 540 U.S.
at 377, 383. The judgment is VACATED and REMANDED. We express no
view on the ultimate merits, and we place no limitation on what decisions the
district court should make.



       3 See also, e.g., Castro, 540 U.S. at 381–82 (collecting cases); United States v. Bernal,
551 F. App’x 177, 179 (5th Cir. 2014) (per curiam) (construing a motion for leave to file an
out-of-time appeal as a § 2255 motion); United States v. Feliz, 537 F. App’x 406, 407 (5th Cir.
2013) (per curiam) (recharacterizing a Federal Rule of Civil Procedure 60(b) motion as a
§ 2255 motion); United States v. Moron-Solis, 388 F. App’x 443, 444–45 (5th Cir. 2010) (per
curiam).
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