IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10094

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO MALDANADO ANCELMO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-129-14

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Francisco Maldonado Ancelmo, federal prisoner # 50914-177, is serving 

a 260-month term of imprisonment, which was imposed following his jury trial 

conviction of conspiracy to possess with intent to distribute methamphetamine. 

He did not pursue a direct appeal.

In December 2017, Ancelmo filed a motion in which he requested that 

the district court conduct an evidentiary hearing to determine whether his trial 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 22, 2018

Lyle W. Cayce

Clerk

 Case: 18-10094 Document: 00514611177 Page: 1 Date Filed: 08/22/2018
No. 18-10094

2

counsel had provided constitutionally adequate representation. Among other 

claims, Ancelmo contended that his trial counsel had violated his due process 

rights by failing to file a notice of appeal. The district court denied the motion

for an evidentiary hearing, and this appeal followed.

Ancelmo has filed a pro se brief in which he raises closely related claims 

that his constitutional rights were abridged because his trial counsel was not 

fit to serve as his attorney and provided incompetent representation in his 

criminal case. He asserts that the district court should have conducted an 

evidentiary hearing. Ancelmo indicates that he is seeking an out-of-time 

appeal.

“We have frequently instructed district courts to determine the true 

nature of a pleading by its substance, not its label.” Armstrong v. Capshaw, 

Goss & Bowers, LLP, 404 F.3d 933, 936 (5th Cir. 2005). Taken as a whole, 

Ancelmo’s district court pleadings indicate a desire to attack the 

constitutionality of his criminal conviction and sentence, and the primary 

means of doing so is a motion under 28 U.S.C. § 2255. See Tolliver v. Dobre, 

211 F.3d 876, 877 (5th Cir. 2000). In view of the foregoing, the district court 

should have liberally construed Ancelmo’s motion for an evidentiary hearing 

as a § 2255 motion. See Morrow v. FBI, 2 F.3d 642, 643 n.2 (5th Cir. 1993). 

Accordingly, we vacate the judgment of the district court and remand for 

further proceedings. We remind the district court that, on remand, it should 

comply with Castro v. United States, 540 U.S. 375, 381-83 (2003), by notifying 

Ancelmo that it intends to recharacterize his motion for an evidentiary hearing 

as a § 2255 motion, warning him that any subsequent § 2255 motion will be 

subject to second or successive restrictions, and providing Ancelmo an 

opportunity to withdraw his motion or amend the motion to include all of his 

 Case: 18-10094 Document: 00514611177 Page: 2 Date Filed: 08/22/2018
No. 18-10094

3

claims. We express no opinion as to the merit of Ancelmo’s claims, nor do we 

express an opinion as to whether the claims are timely under § 2255(f). 

VACATED AND REMANDED.

 Case: 18-10094 Document: 00514611177 Page: 3 Date Filed: 08/22/2018