United States v. Martinez-Carrillo ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO DAMIAN MARTINEZ-CARRILLO,
also known as Pedro Martinez-Carrillo,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. L-99-—4411
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro Damian Martinez-Carrillo (Martinez), represented by the
Federal Public Defender (FPD), seeks to appeal two judgments
revoking probation imposed following two prior guilty-plea
convictions for illegally entering the United States. The FPD did
not file a timely notice of appeal, nor seek a timely extension of
the time for filing a notice of appeal. See FED. R. APP. P. 4(b)(1)
& (4). Instead, five months after the revocation, the FPD filed a
*
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that this opinion should not be published and is not precedent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.
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motion for the “judicial remedy” of an out-of-time appeal. The
district court granted the motion.
“[A] district court does not have the authority to create
appellate jurisdiction simply by ordering an out-of-time direct
criminal appeal. Compliance with the Federal Rules of Appellate
Procedure is imperative.” United States v. West, 240 F.3d 456, 459
(5th Cir. 2001). West did not create a new remedy, but addressed
only the proper procedures for granting an out-of-time appeal
pursuant to 28 U.S.C. § 2255. Id. at 459-61 (“Since 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.”) (citations
omitted).
We VACATE the district court’s order granting the “judicial
remedy” of an out-of-time appeal, and we REMAND the case. The
district court should determine, in light of Castro v. United
States, __ U.S. __, 124 S. Ct. 786, 792 (2003), whether it will
construe the motion for “judicial remedy” as a 28 U.S.C. § 2255
motion and, if so, whether Martinez received ineffective assistance
of appellate counsel. If the district court construes the motion
as a § 2255 motion and finds ineffective assistance, then the
constructive § 2255 motion should be dismissed without prejudice
and the judgment reentered. The district court may accept any
pleadings or conduct any hearings necessary for compliance with
this order.
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ORDER VACATED; CASE REMANDED.