United States v. Rodriguez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40230 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL J. RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-94-CR-117-1 -------------------- June 3, 2002

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel J. Rodriguez (“Rodriguez”), federal inmate federal

inmate #23881-149, appeals the district court’s denial of his

motion to file an out-of-time notice appeal. Rodriguez contends

that his attorney was ineffective for failing to file a timely

notice of appeal. The Government contends that Rodriguez’

constructive 28 U.S.C. § 2255 motion is time-barred.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40230 -2-

The district court entered judgment in Rodriguez’ criminal

conviction on June 27, 1995, and he filed the instant motion on

December 27, 1999. Given Rodriguez’ claim and the relief he

seeks, his motion comes within the scope of 28 U.S.C. § 2255.

See 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. 1981). The

record does not indicate whether the district court construed the

motion a § 2255 motion. Accordingly, we remand for the district

court to expressly consider Rodriguez’ motion as a § 2255 motion.

On remand, the district court should also consider the timeliness

of Rodriguez’ motion. See Flanagan v. Johnson, 154 F.3d 196,

200-02 (5th Cir. 1998).

VACATED and REMANDED.