United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 19, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-50374
USDC No. 3:01-CR-1940-1-DB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL SILVAS,
Defendants-Appellant.
Appeal from the United States District Court for
the Western District of Texas
_________________________________________________________
Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Raul Silvas pleaded guilty to conspiring to possess 100 grams or more of
heroin with intent to distribute. Over two years after the district court had entered
final judgment in the criminal proceedings, Silvas filed a “Motion to Seek an Out of
Time Appeal.” The district court denied the motion, concluding that it lacked
*
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not be published and is not precedent except under the limited circumstances set forth in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.
jurisdiction to permit Silvas to seek an appeal. Silvas timely appealed from the
district court’s denial of his motion for an out-of-time appeal, and he now requests
that this court appoint him counsel for assistance in this appeal.
This court can dismiss an appeal during consideration of an interlocutory
motion if the appeal “is frivolous and entirely without merit.” 5TH CIR. R. 42.2.
Because Silvas’s motion was filed more than 40 days after the entry of judgment, the
district court correctly concluded that it lacked jurisdiction to grant Silvas’s motion
for leave to file an out-of-time appeal. See FED. R. APP. P. 4(b)(1)(A) & 4(b)(4).
The district court should not have sua sponte construed Silvas’s motion as a
motion to vacate his sentence under 28 U.S.C. § 2255 because the court had not
given Silvas notice of its intent, a warning about the effects of treating the motion as
a § 2255 motion, and an opportunity to add any additional claims. See Castro v.
United States, 540 U.S. 375, 383 (2003). However, notification of the
recharacterization would not change the fact that the limitation period for Silvas to
file a § 2255 motion had long since passed. See 28 U.S.C. § 2255 (providing a one-
year limitations period for federal prisoners seeking habeas relief). Since any § 2255
motion filed by Silvas would be time-barred, the district court’s failure to notify
Silvas of the recharacterization was harmless.
Because the district court lacked jurisdiction to grant Silvas the relief he
requested, and the district court’s recharacterization was harmless, Silvas has not
established that his appeal of the district court’s denial of his motion for an out-of-
time appeal has any arguable merit. Because the appeal is frivolous, IT IS
ORDERED that the appeal be DISMISSED, and accordingly, Silvas’s motion for
appointment of counsel is DENIED.