United States v. Herrera

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 16, 2008
No. 07-10504
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

WILLIAM RAY HERRERA

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:07-CV-11
USDC No. 6:05-CR-56-2

Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
William Ray Herrera, federal prisoner # 34154-144, was convicted of one
charge of possessing methamphetamine with intent to distribute and was
sentenced to serve 108 months in prison and a three year term of supervised
release. Herrera filed the instant 28 U.S.C. § 2255 motion to challenge his
conviction and sentence, and he moved this court for a certificate of appealability
(COA) to appeal the district court’s dismissal of his § 2255 motion as untimely.

*
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should not be published and is not precedent except under the limited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.
 No. 07-10504

Herrera was granted a COA on the issue whether the district court erred by
determining that Herrera’s § 2255 motion was untimely, and this appeal ensued.
Herrera argues that his § 2255 motion was timely filed and that the
district court improperly calculated the time he had to take a direct appeal. The
Government agrees that the district court’s timeliness calculations were flawed
but contends that this court may affirm the district court’s denial of § 2255 relief
on the basis that Herrera’s claims lack merit.
We agree that the district court erred by determining that Herrera’s
§ 2255 motion was untimely. When conducting its timeliness analysis, the
district court determined that Herrera had ten calendar days, rather than ten
working days, to file his notice of appeal. See FED. R. APP. P. 4(b)(1)(A),
26(a)(1),(2). We conclude that Herrera’s § 2255 motion was timely filed.
We may affirm the denial of Herrera’s § 2255 motion on any basis
supported by the record. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000);
Aeby v. United States, 409 F.2d 1, 2 (5th Cir. 1969). Nevertheless, the record is
not sufficiently developed to permit consideration of Herrera’s claims on the
merits. Consequently, the judgment of the district court is VACATED, and this
case is REMANDED for further proceedings consistent with this opinion.

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