United States v. Martinez-Carrillo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-40706 c/w
03-40707
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO DAMIAN MARTINEZ-CARRILLO,
also known as Pedro Martinez-Carrillo,

Defendant-Appellant.

--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. L-99-—4411
--------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Pedro Damian Martinez-Carrillo (Martinez), represented by the

Federal Public Defender (FPD), seeks to appeal two judgments

revoking probation imposed following two prior guilty-plea

convictions for illegally entering the United States. The FPD did

not file a timely notice of appeal, nor seek a timely extension of

the time for filing a notice of appeal. See FED. R. APP. P. 4(b)(1)

& (4). Instead, five months after the revocation, the FPD filed a

*
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that this opinion should not be published and is not precedent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.
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motion for the “judicial remedy” of an out-of-time appeal. The

district court granted the motion.

“[A] district court does not have the authority to create

appellate jurisdiction simply by ordering an out-of-time direct

criminal appeal. Compliance with the Federal Rules of Appellate

Procedure is imperative.” United States v. West, 240 F.3d 456, 459

(5th Cir. 2001). West did not create a new remedy, but addressed

only the proper procedures for granting an out-of-time appeal

pursuant to 28 U.S.C. § 2255. Id. at 459-61 (“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.”) (citations

omitted).

We VACATE the district court’s order granting the “judicial

remedy” of an out-of-time appeal, and we REMAND the case. The

district court should determine, in light of Castro v. United

States, __ U.S. __, 124 S. Ct. 786, 792 (2003), whether it will

construe the motion for “judicial remedy” as a 28 U.S.C. § 2255

motion and, if so, whether Martinez received ineffective assistance

of appellate counsel. If the district court construes the motion

as a § 2255 motion and finds ineffective assistance, then the

constructive § 2255 motion should be dismissed without prejudice

and the judgment reentered. The district court may accept any

pleadings or conduct any hearings necessary for compliance with

this order.
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ORDER VACATED; CASE REMANDED.