* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40466

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CANDIDO GAYTAN-ORTIZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CV-97

USDC No. 5:04-CR-616-1

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Candido Gaytan-Ortiz (Gaytan), federal prisoner #34995-179, challenges

the district court’s dismissal of his 28 U.S.C. § 2255 motion. The district court

granted a certificate of appealability on the issue whether Gaytan suffered

ineffective assistance of counsel, warranting an out-of-time appeal, because

appellate counsel failed to prosecute Gaytan’s appeal and, in this collateral

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2009

Charles R. Fulbruge III

Clerk
No. 07-40466

2

attack, failed to raise a claim of ineffective assistance of counsel due to his own

failure to prosecute the appeal.

To obtain relief based on ineffective assistance of counsel, a movant must

demonstrate both that his attorney’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687 (1984). “The general rule announced in Strickland . . . is modified

when the complained of performance results in the actual or constructive denial

of any assistance of appellate counsel. In such a case, the petitioner need not

demonstrate the typical Strickland-type prejudice, because prejudice is

presumed.” Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000). The government

concedes that because counsel filed no appellate brief after filing a timely notice

of appeal, Gaytan was constructively denied any assistance of counsel on appeal.

We have previously stated that “[s]ince 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.” 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. Unit A 1981). We clarified that under this

“judicial remedy,” the district court must dismiss a petitioner’s § 2255 petition

without prejudice and reinstate the judgment of conviction, which will restart

the time for appeal under Federal Rule of Appellate Procedure 4(b)(1)(A). See

West, 240 F.3d at 458. The government agrees that this is the proper remedy in

this case. Accordingly, we VACATE the district court’s § 2255 ruling and

REMAND with instructions to dismiss Gaytan’s § 2255 motion without

prejudice, grant an out-of-time appeal, and reinstate the criminal judgment on

the docket. See id. at 462.

To the extent that the district court’s COA grant extends to counsel’s

conduct in the § 2255 proceedings, the denial of habeas relief is affirmed, as

there is no constitutional right to counsel in postconviction proceedings. See

Ford v. United States, 363 F.2d 437, 437-38 (5th Cir. 1966).

AFFIRMED IN PART: VACATED AND REMANDED IN PART