     Case: 08-50300     Document: 00511022295          Page: 1    Date Filed: 02/08/2010




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

                                                  FILED
                                                                          February 8, 2010

                                       No. 08-50300                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

CESAR JAVIER FLORES,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:03-CR-203-6


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        Cesar Javier Flores was convicted by a jury of conspiracy and substantive
drug offenses and sentenced to 63 months in prison. He did not timely appeal
his conviction because he was allegedly under the mistaken impression that his
counsel had filed a notice of appeal when counsel had not done so. Four months
after the judgment was entered, Flores sought relief in a pro se motion
purportedly filed under F ED. R. C IV. P. 60(b). The motion was captioned “Motion



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50300

Pursuant to 60(b) F.R.Civ.P. to Recall Mandate, to File Notice of Appeal, for
Failure of Defendant’s Attorney to Comply with Rule 4(a) Fed.R.App.P.”
      The district court denied the motion because Rule 60(b), a rule of civil
procedure, is inapplicable in criminal cases. The court also noted that the time
for filing a motion for new trial pursuant to F ED. R. C RIM. P. 33 had expired,
even though Flores had not requested that relief. The court advised Flores that
he could challenge his conviction by filing a motion pursuant to 28 U.S.C. § 2255.
Flores appeals from the district court’s order. We conclude that the district court
erred in its construction of Flores’s pro se motion, and we remand for further
proceedings.
      The district court was correct that Rule 60(b) applies only to civil cases and
“simply does not provide relief from a judgment in a criminal case.” United
States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (Dennis, J., dissenting from
grant of motion for temporary stay pending appeal). The proper vehicle for
challenging a criminal conviction after the direct appeal period has expired is a
motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255.
      Here, although Flores invoked F ED. R. C IV. P. 60(b), it is clear from the
contents of his motion that Flores was making a claim of ineffective assistance
of counsel for failing to file a notice of appeal. Such a claim is properly asserted
in a § 2255 motion because counsel’s failure to appeal a conviction when
requested to do so is constitutionally deficient performance, and the remedy is
an out-of-time appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 483–86, 120 S. Ct.
1029, 1038–40 (2000); see also United States v. Tapp, 491 F.3d 263, 266 (5th Cir.
2007). Flores did not explicitly ask for an out-of-time appeal, but he did seek as
relief “the opportunity to file [a] notice of appeal.”
      Pro se litigants are entitled to liberal construction of their pleadings.
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972). Moreover, “[w]e
have frequently instructed district courts to determine the true nature of a

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                                  No. 08-50300

pleading by its substance, not its label.” Armstrong v. Capshaw, Goss & Bowers,
LLP, 404 F.3d 933, 936 (5th Cir. 2005); see also Edwards v. City of Houston, 78
F.3d 983, 995 (5th Cir. 1996) (en banc) (“[W]e have oft stated that ‘the relief
sought, that to be granted, or within the power of the Court to grant, should be
determined by substance, not a label’”) (quoting Bros. Inc. v. W.E. Grace Mfg.
Co., 320 F.2d 594, 606 (5th Cir. 1963)).
      We find that Flores’s motion, although inartfully drafted, stated enough
that it should have been liberally construed as a § 2255 motion. Cf. United
States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) (holding in a collateral
proceeding that “courts may treat motions that federal prisoners purportedly
bring under Rule 60(b), but which essentially seek to set aside their convictions
on constitutional grounds, as § 2255 motions”). We express no opinion on the
merits of Flores’s constitutional claim, such as whether he actually did ask
counsel to file an appeal or whether counsel failed to consult with his client. See
Flores-Ortega, 528 U.S. at 477–78, 120 S. Ct. at 1035. But we think that the
interests of justice require the district court to further consider the matter,
including providing Flores with notice that the motion will be recharacterized
under § 2255. See Castro v. United States, 540 U.S. 375, 381–83, 124 S. Ct. 786,
791–92 (2003) (before construing pro se litigant’s motion as a request for relief
under § 2255 court must notify litigant that it intends to recharacterize the
motion, warn the litigant that any subsequent § 2255 motion will be subject to
second or successive restrictions, and provide the litigant an opportunity to
withdraw or amend the motion to include all of his claims).         We therefore
remand to the district court for further proceedings.
      VACATED and REMANDED.




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