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

                                                                  FILED
                                                                January 28, 2009
                                No. 07-40466
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CANDIDO GAYTAN-ORTIZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 5:06-CV-97
                           USDC No. 5:04-CR-616-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Candido Gaytan-Ortiz (Gaytan), federal prisoner #34995-179, challenges
the district court’s dismissal of his 28 U.S.C. § 2255 motion. The district court
granted a certificate of appealability on the issue whether Gaytan suffered
ineffective assistance of counsel, warranting an out-of-time appeal, because
appellate counsel failed to prosecute Gaytan’s appeal and, in this collateral




      *
      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should not be published and is not precedent except under the limited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.
                                    No. 07-40466
attack, failed to raise a claim of ineffective assistance of counsel due to his own
failure to prosecute the appeal.
      To obtain relief based on ineffective assistance of counsel, a movant must
demonstrate both that his attorney’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). “The general rule announced in Strickland . . . is modified
when the complained of performance results in the actual or constructive denial
of any assistance of appellate counsel. In such a case, the petitioner need not
demonstrate the typical Strickland-type prejudice, because prejudice is
presumed.” Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000). The government
concedes that because counsel filed no appellate brief after filing a timely notice
of appeal, Gaytan was constructively denied any assistance of counsel on appeal.
      We have previously stated that “[s]ince the 1960s, our court, pursuant to
a § 2255 motion, has permitted an out-of-time appeal when a defendant was
denied assistance of counsel on appeal, through counsel’s failure to perfect an
appeal.” United States v. West, 240 F.3d 456, 459 (5th Cir. 2001); see also Mack
v. Smith, 659 F.2d 23, 25-26 (5th Cir. Unit A 1981). We clarified that under this
“judicial remedy,” the district court must dismiss a petitioner’s § 2255 petition
without prejudice and reinstate the judgment of conviction, which will restart
the time for appeal under Federal Rule of Appellate Procedure 4(b)(1)(A). See
West, 240 F.3d at 458. The government agrees that this is the proper remedy in
this case. Accordingly, we VACATE the district court’s § 2255 ruling and
REMAND with instructions to dismiss Gaytan’s § 2255 motion without
prejudice, grant an out-of-time appeal, and reinstate the criminal judgment on
the docket. See id. at 462.
      To the extent that the district court’s COA grant extends to counsel’s
conduct in the § 2255 proceedings, the denial of habeas relief is affirmed, as
there is no constitutional right to counsel in postconviction proceedings. See
Ford v. United States, 363 F.2d 437, 437-38 (5th Cir. 1966).
      AFFIRMED IN PART: VACATED AND REMANDED IN PART

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