IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40201

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JULIO CESAR BERNAL,

Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas

U.S.D.C. No. 7:11-CR-1384-1

Before JONES, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Julio Cesar Bernal appeals the district court’s denial of his motion for 

leave to file an out-of-time appeal. We VACATE and REMAND.

I. Background

Bernal was charged in a two-count indictment with: (1) conspiracy to 

possess with intent to distribute 100 kilograms or more of marijuana in 

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) (“Count One”); and (2) 

possession with intent to distribute 100 kilograms or more of marijuana in 

* 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

January 8, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40201

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (“Count 

Two”). After Bernal pleaded guilty to Count Two pursuant to a plea 

agreement, the district court sentenced Bernal to serve the statutory minimum 

of sixty months of imprisonment followed by four years of supervised release. 

Judgment was entered on March 23, 2012. 

On July 23, 2012, Bernal moved pro se for leave to file an out-of-time 

appeal and for appointment of counsel. In his motion, Bernal stated, among 

other things, that he had been trying to file a notice of appeal, that he had not 

spoken with his attorney and “was alone,” and that he had a limited grasp of 

English and of the law. He acknowledged that he had not complied with 

Federal Rule of Appellate Procedure 4(b) (“Appellate Rule 4(b)”) and requested 

that the district court treat his motion as a “Belated Appeal, and not a 28 

U.S.C[. §] 2255 motion.”

After the district court referred the motion to the magistrate judge, the 

magistrate judge recommended denial of Bernal’s request for leave to file an 

out-of-time appeal, but granted his request for the appointment of counsel. The 

magistrate judge did not examine whether the motion should be construed as 

a § 2255 motion, analyzing only the question of timeliness under Appellate 

Rule 4(b). In this regard, he correctly concluded that the time for Appellate 

Rule 4(b) motions had passed.

Now represented by counsel, Bernal filed objections to the magistrate 

judge’s report and recommendation, arguing that his motion should be

construed as a motion pursuant to 28 U.S.C. § 2255 for an out-of-time appeal 

based on ineffective assistance of counsel. In the alternative, Bernal asked for 

an evidentiary hearing. Over Bernal’s objection, the district court adopted the 

report and recommendation of the magistrate judge and denied Bernal’s 

motion for leave to file an out-of-time appeal. Bernal appeals the denial of his 

motion. The district court’s order did not conduct an evidentiary hearing and 

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did not address the § 2255 argument except by stating “after appropriate 

review of Defendant’s objections [to the magistrate’s report and 

recommendations] . . . the conclusions [in that document] should be adopted.”

II. Discussion

Appellate Rule 4(b)(1)(A) provides that, in a criminal case, a defendant 

must file a notice of appeal within fourteen days of the entry of the judgment

being appealed. The district court may extend the time to file for thirty days 

upon a finding of excusable neglect or good cause. See FED. R. APP. P. 4(b)(4). 

Because these time limits are not statutorily imposed, they are “mandatory, 

but not jurisdictional” and may be waived. United States v. Martinez, 496 F.3d 

387, 388 (5th Cir. 2007). 

Bernal does not challenge the district court’s enforcement of these time 

limitations. Indeed, this court may not reverse a district court’s decision to do 

so. See United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006). 

Rather, he argues that the district court should have construed his filing as a 

motion pursuant to 28 U.S.C. § 2255 for an out-of-time appeal based on 

ineffective assistance of counsel.

A claim of ineffective assistance of counsel for failing to timely file a 

notice of appeal is properly asserted in a § 2255 motion and the remedy is an 

out-of-time appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 483–86 (2000); see 

also United States v. Tapp, 491 F.3d 263, 265–66 (5th Cir. 2007); United States 

v. West, 240 F.3d 456, 459 (5th Cir. 2001) (“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.”).

The Government contends that Bernal waived his right to § 2255 relief

by originally requesting that the district court treat his motion as a “Belated 

Appeal, and not a 28 U.S.C[. §] 2255 motion.” However, the pleadings of pro 

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se litigants should be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 

94 (2007). “It is the substance of the relief sought by a pro se pleading, not the 

label that the [movant] has attached to it, that determines [its] true nature 

and operative effect . . . .” Hernandez v. Thaler, 630 F.3d 420, 426–27 (5th Cir. 

2011). In his motion, Bernal advised the district court that he had been trying 

to file a notice of appeal, but had been unable to consult with his attorney and 

“was alone.” In his objection to the magistrate judge’s report and 

recommendation, Bernal made it clear that he was seeking relief under 28 

U.S.C. § 2255 and that he was asserting that he had been deprived of the 

effective assistance of counsel in exercising his right to appeal.

We conclude that Bernal’s pro se motion should have been liberally 

construed as a § 2255 motion. We have previously required a district court to 

recharacterize as a § 2255 motion a request for an out-of-time appeal that in 

substance brought an ineffective assistance of counsel claim. See United States 

v. Moron-Solis, 388 F. App’x 443, 444–45 (5th Cir. 2010) (unpublished); United 

States v. Flores, 380 F. App’x 371, 372 (5th Cir. 2010) (unpublished).1 We 

express no opinion on the merits of Bernal’s constitutional claim, such as 

whether he actually asked counsel to file an appeal or whether counsel failed 

to consult with his client. See Flores-Ortega, 528 U.S. at 477–78. However, the 

interests of justice require the district court to give Bernal’s claims additional 

consideration under § 2255. See Castro v. United States, 540 U.S. 375, 381–83 

(2003). We therefore remand to the district court for further proceedings

consistent herewith.

VACATED and REMANDED. 

1 While Moron-Solis and Flores are not “controlling precedent,” they “may be [cited as] 

persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).

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