United States v. Rodriguez ( 2002 )

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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-94-CR-117-1
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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that this opinion should not be published and is not precedent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.