Case: 10-51140     Document: 00511626069         Page: 1     Date Filed: 10/07/2011




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

                                                                            FILED
                                                                          October 7, 2011
                                     No. 10-51140
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TERRENCE DOYLE MITCHELL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:04-CR-203-1


Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
        Terrence Doyle Mitchell, federal prisoner # 04106-180, appeals from the
district court’s order denying his motion for specific performance or
reinstatement of his direct appeal. In his motion, Mitchell contended that his
plea agreement was breached and that counsel was ineffective for failing to
prosecute a direct appeal. Mitchell’s district court motion was an attempt to
collaterally attack his sentence by raising errors that occurred at sentencing or
during the period for pursuing a direct appeal. As such, the motion should have

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-51140   Document: 00511626069     Page: 2   Date Filed: 10/07/2011

                                 No. 10-51140

been construed by the district court as a 28 U.S.C. § 2255 motion. See Tolliver
v. Dobre, 

, 877 (5th Cir. 2000); see also United States v. Rich, 

, 551 (5th Cir. 1998). Such a recharacterization of Mitchell’s motion has
important consequences of which Mitchell should be apprised. See Castro v.
United States, 

, 383 (2003). Also, because Mitchell’s motion was in
the nature of a 2255 motion, we lack jurisdiction over his appeal absent ruling
on a certificate of appealability in the district court. See United States v.
Youngblood, 

, 1114-15 (5th Cir. 1997).
      The judgment of the district court is VACATED and this case is
REMANDED for further proceedings.




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