IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40330

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JUAN GABRIEL CISNEROS,

Defendant−Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:16-CV-279

 USDC No. 4:95-CR-196-7

Before SMITH, WIENER, and WILLETT, Circuit Judges

PER CURIAM:*

Juan Cisneros, federal prisoner #40178-079, filed a 28 U.S.C. § 2255 

 

* 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

March 1, 2019

Lyle W. Cayce

Clerk

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motion to challenge his guilty-plea conviction of conspiring to aid and assist in 

the escape of persons in the custody of the Attorney General, for which he was 

sentenced to 24 months to run consecutively to a sentence of life that Cisneros

had received in another criminal case. The district court recharacterized the 

§ 2255 motion as a motion under Federal Rule of Civil Procedure 60(b) and 

denied it; the court also addressed the merits of numerous claims raised in 

Cisneros’s § 2255 motion and determined that they lacked merit. This court 

granted a certificate of appealability (“COA”) on several issues.

As a preliminary matter, Cisneros has moved this court to take judicial 

notice of an order issued by the district court in a similar case involving a 

different defendant. We may take judicial notice of our own records or those of 

inferior courts. See ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n.2 

(5th Cir. Unit B July 1981). Accordingly, we grant Cisneros’s motion, although 

it is unnecessary for us to consider the order in resolving this appeal.

On the record before us, we agree with Cisneros that the district court 

erred to the extent that it treated his filing as a successive § 2255 motion. That 

is because, in connection with a Rule 60(b)-denominated motion filed by Cisneros in 1996, which the district court recharacterized as a § 2255 motion, we 

see no indication in the record that Cisneros was provided the warnings required under Castro v. United States, 540 U.S. 375 (2003). Under Castro, when 

a federal court recharacterizes a pro se litigant’s filing as a first § 2255 motion, 

it is required to

notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any 

subsequent § 2255 motion will be subject to the restrictions on ‘second or successive’ motions, and provide the litigant an opportunity 

to withdraw the motion or to amend it so that it contains all the 

§ 2255 claims he believes he has.

Castro, 540 U.S. at 383. Where a court recharacterizes a motion as a first 

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§ 2255 motion without providing the protections required by Castro, “the 

motion cannot be considered to have become a § 2255 motion for purposes of 

applying to later motions the law’s ‘second or successive’ restrictions.” Id.

We also take note of an error in a related case. In April 1998, Cisneros 

filed a § 2255 motion, which the district court denied after finding that Cisneros’s case had already been dismissed. Cisneros filed two motions for reconsideration of that order, contending that his April 1998 § 2255 motion was improperly docketed in the civil case associated with his challenge to his conviction for conspiracy to escape. The district court denied both of those motions. 

Cisneros then sought a COA from this court on the denial of reconsideration. 

In an order issued before Castro, we denied that COA motion based on a determination that Cisneros’s April 1998 § 2255 motion was an unauthorized, successive motion. See United States v. Cisneros, No. 99-40357 (Mar. 2, 2000) 

(unpublished). Because Cisneros’s first post-conviction motion does not count 

as an initial § 2255 motion, see Castro, 540 U.S. at 383, his April 1998 motion 

should not have been treated as successive. 

Further, although federal courts “sometimes will ignore the legal label 

that a pro se litigant attaches to a motion and recharacterize the motion in

order to place it within a different legal category,” id. at 381, we agree with 

Cisneros that, based on the record before us, the district court erred in doing 

so with respect to the instant § 2255 motion. Because § 2255 provides the primary means of collaterally attacking a federal conviction or sentence, and Cisneros’s § 2255 motion was not successive, he appropriately proceeded under 

§ 2255 to attack his conviction and sentence on the charge of conspiracy to 

escape. See Reyes-Requena v. United States, 243 F.3d 893, 897−99 (5th Cir. 

2001); Tolliver v. Dobre, 211 F.3d 876, 877−78 (5th Cir. 2000).

Finally, Cisneros maintains that the district court erred in denying relief

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on his claims that his trial counsel was ineffective in connection with his guilty 

plea and for failing to file a notice of appeal. Cisneros avers that the district 

court should have conducted an evidentiary hearing on those claims. Because 

“the motion, files, and records” do not “conclusively show that [Cisneros] is 

entitled to no relief” on the above claims, we agree that the district court erred 

to the extent it denied relief based on the merits of the claims. United States 

v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992); see United States v. Tapp, 

491 F.3d 263, 266 (5th Cir. 2007). 

The judgment is VACATED and REMANDED. We place no limitation 

on the matters that the district court can consider on remand, and we intimate 

no view on how it should rule on any issue. The motion for judicial notice is 

GRANTED.

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