IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40375

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSHUA HERRERA, 

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:13-CR-33-1

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Joshua Herrera, federal prisoner # 21059-078, pleaded guilty to 

committing a felony offense involving a minor under 18 U.S.C. § 2242(b) while 

being a registered sex offender, in violation of 18 U.S.C. § 2260A. In January 

of 2014, Herrera was sentenced to 120 months of imprisonment. He did not 

file a direct appeal.

 

* 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

February 4, 2016

Lyle W. Cayce

Clerk

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No. 15-40375

2

In December of 2014, Herrera filed a motion for relief from judgment 

pursuant to Federal Rule of Civil Procedure 60(b), requesting the district court 

to vacate his conviction and sentence. The district court denied the motion 

because Rule 60(b), a rule of civil procedure, is inapplicable in criminal cases. 

The court stated that it construed Herrera’s motion as a motion filed under 

28 U.S.C. § 2255 and granted him the opportunity to file a § 2255 motion that 

would relate back to the filing of his Rule 60(b) motion. Herrera appeals from 

the district court’s order denying his Rule 60(b) motion.

The district court was correct that Rule 60(b) applies to civil cases, not 

criminal cases. E.g., United States v. Bouldin, 466 F. App’x 327, 328 (5th Cir. 

2012); United States v. Flores, 380 F. App’x 371, 372 (5th Cir. 2010). Although 

Herrera invoked Rule 60(b), it is apparent from the substance of his motion 

that he is seeking to challenge his conviction on constitutional grounds. 

Constitutional claims are properly asserted in a § 2255 motion to vacate. 

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Pro se litigants 

are entitled to liberal construction of their pleadings. Haines v. Kerner, 404 

U.S. 519, 520 (1972). The district court therefore properly construed Herrera’s 

filing as a § 2255 motion. See United States v. Rich, 141 F.3d 550, 551 (5th Cir.

1998) (holding, “courts may treat motions that federal prisoners purportedly 

bring under Rule 60(b), but which essentially seek to set aside their convictions 

on constitutional grounds, as § 2255 motions”).

However, when construing a pro se litigant’s motion as a § 2255 motion, 

the court must notify the litigant that it intends to do so, “warn the litigant 

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.” Castro v. United States, 540 U.S. 375, 383 (2003). 

Thus, rather than deny Herrera’s motion and allow refiling in proper form, the 

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3

district court should have notified Herrera that it intended to recharacterize 

his motion and given him an opportunity to withdraw or amend it. See id. We 

therefore vacate the district court’s order and remand to the district court for 

further proceedings consistent with Castro.

The Government’s motion for summary affirmance is DENIED. The 

Government’s alternative motion for an extension of time to file a brief is also 

DENIED. Herrera’s motion for default judgment is also DENIED.

VACATED and REMANDED; MOTIONS DENIED.

 Case: 15-40375 Document: 00513369620 Page: 3 Date Filed: 02/04/2016