Case: 15-40375      Document: 00513369620         Page: 1    Date Filed: 02/04/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 15-40375
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 4, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-40375

      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, 

, 368 (5th Cir. 1992). Pro se litigants
are entitled to liberal construction of their pleadings. Haines v. Kerner, 

, 520 (1972). The district court therefore properly construed Herrera’s
filing as a § 2255 motion. See United States v. Rich, 

, 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, 

, 383 (2003).
Thus, rather than deny Herrera’s motion and allow refiling in proper form, the



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                                 No. 15-40375

district court should have notified Herrera that it intended to recharacterize
his motion and given him an opportunity to withdraw or amend it. See 

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.




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