   Case: 11-40505       Document: 00512040839         Page: 1     Date Filed: 11/01/2012




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

                                                                            FILED
                                                                         November 1, 2012
                                     No. 11-40505
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




EARNEST LYNN ROSS,

                                                  Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                                No. 4:10-CV-293




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Earnest Ross, Texas prisoner # 1728219 and federal prisoner # 15348-078,
was convicted in federal court of two counts of possession of a firearm by a con-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40505   Document: 00512040839      Page: 2   Date Filed: 11/01/2012

                                  No. 11-40505

victed felon. About three months after his conviction was affirmed on direct
appeal, he filed a petition for a writ of coram nobis (“WCN”) asserting that his
trial counsel had rendered ineffective assistance. The district court dismissed
the petition, determining that because Ross was in custody, a WCN was not
available to him. The court also denied Ross’s motion to proceed in forma pau-
peris (“IFP”) on appeal after determining that his appeal was not taken in good
faith in light of the reasoning in the report of the magistrate judge (“MJ”) and
the district court’s decision. Ross seeks leave to proceed IFP on appeal. His IFP
motion is construed as a challenge to the district court’s denial of leave to pro-
ceed IFP and the determination that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Before this court, Ross argues the merits of his ineffective-assistance
claims. Because these allegations are not directed to the reasons why the dis-
trict court denied IFP status, we do not consider them. See id. With respect to
the basis of the IFP denial, Ross asserts that the MJ lacked jurisdiction to issue
a report, because Ross did not consent to proceed before an MJ. The district
court, however, could designate the MJ to conduct hearings and submit a report
even in the absence of consent. See 28 U.S.C. § 636(b)(1)(B).
      Ross contends that the district court erred in concluding that he could not
proceed with his petition because he was in custody. “The [WCN] is an extraor-
dinary remedy available to a petitioner no longer in custody who seeks to vacate
a criminal conviction.” United States v. Esogbue, 357 F.3d 532, 534 (5th Cir.
2004) (quoting Jiminez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996)) (emphasis
added). Although Ross cites authority from other circuits permitting such peti-
tions from incarcerated prisoners, such authority does not supersede binding
authority from this circuit. See United States v. Sauseda, 596 F.3d 279, 282 (5th
Cir. 2010). Ross’s assertion that he could not proceed under 28 U.S.C. § 2255
because he was challenging his conviction rather than his sentence is frivolous.
See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000) (concluding that a 28

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                                  No. 11-40505

U.S.C. § 2241 petition challenging errors occurring at trial or sentencing should
be construed as a § 2255 motion).
      In the alternative, Ross maintains that the district court should have con-
strued his petition for a WCN as a § 2255 motion. We have approved the rechar-
acterization of pro se prisoner pleadings according to the nature of the claims,
regardless of the label assigned by the petitioner. See Solsona v. Warden, F.C.I.,
821 F.2d 1129, 1132 n.1 (5th Cir. 1987). Ross’s post-judgment allegations of inef-
fective assistance are properly presented in a § 2255 proceeding. See Massaro
v. United States, 538 U.S. 500, 504-05 (2003). Because Ross’s pleading was filed
in the court that sentenced him, and because he has not filed a previous § 2255
motion, there are no procedural limitations preventing consideration of his peti-
tion as a § 2255 proceeding. See § 2255(a), (h). Moreover, if Ross attempted to
file a § 2255 motion at this time, it would be untimely. See § 2255(f).
      Ross has raised a “legal point[] arguable on [its] merits (and therefore not
frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quota-
tion marks and citation omitted). Accordingly, the motion for leave to proceed
IFP is GRANTED. See Baugh, 117 F.3d at 202. The judgment of dismissal is
VACATED and REMANDED for the district court to consider the petition for a
WCN as a § 2255 motion. On remand, the district court should advise Ross of
the intended recharacterization, inform him of the consequences that the rechar-
acterization will have on subsequent § 2255 motions, and provide him with an
opportunity to withdraw or amend the motion. See Castro v. United States, 540
U.S. 375, 383 (2003).




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