### 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 H errera, 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 4, 2016

Lyle W. Cayce Clerk Case: 15-40375 Document: 00513369620 Page: 1 Date Filed: 02/04/2016No. 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. § 22 55 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) applie s to civil cases , not

cr iminal case s

. 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)

. A lthough
Herrera invoked Rule 60(b), it is apparent from the substance of his mot ion 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 Case: 15-40375 Document: 00513369620 Page: 2 Date Filed: 02/04/2016No. 15

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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 i d. 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 s ummary affirmanc e 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