     Case: 12-51017       Document: 00512334746         Page: 1     Date Filed: 08/07/2013




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

                                                                            FILED
                                                                           August 7, 2013
                                     No. 12-51017
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADRIAN SERRANO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CV-318


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Adrian Serrano, federal prisoner # 66102-280, moves in this court for a
certificate of appealability (COA) to appeal the district court’s dismissal of his
28 U.S.C. § 2255 motion as time barred.                In his § 2255 motion, Serrano
challenged his guilty plea conviction for conspiring to import more than 500
grams of methamphetamine, for which he was sentenced to 144 months of
imprisonment. He alleged that he was denied effective assistance of trial and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51017    Document: 00512334746      Page: 2   Date Filed: 08/07/2013

                                 No. 12-51017

appellate counsel and that, despite promises of immunity, the Government used
his statements to secure the indictment against him.
      Reasonable jurists would debate or find that the district court erred in sua
sponte dismissing the § 2255 motion as time barred without giving the parties
notice and an opportunity to present their positions on the issues of timeliness
and equitable tolling. See Day v. McDonough, 547 U.S. 198, 209-210 & n.11
(2006); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Additionally, “the district
court pleadings, the record, and the COA application demonstrate that
reasonable jurists could debate whether [Serrano] has made a valid claim of a
constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      Accordingly, Sosa’s motion for a COA is GRANTED; his motion for
appointment of appellate counsel is DENIED as unnecessary; the district court’s
judgment dismissing the motion as untimely is VACATED and the matter is
REMANDED for further proceedings consistent with Day. See id.; Whitehead
v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).




                                        2
