USA v. Javier Cisneros, No. 17-40417 (5th Cir. 2017)
Annotate this Case
Download PDF
Case: 17-40417 Document: 00514276147 Page: 1 Date Filed: 12/18/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-40417 United States Court of Appeals Fifth Circuit FILED December 18, 2017 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. JAVIER CISNEROS, also known as El Negro, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:17-CV-36 USDC No. 1:94-CR-181-13 Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURIAM: * Javier Cisneros, former federal prisoner # 65822-079, moves for a certificate of appealability (COA) to appeal from the dismissal of his 28 U.S.C. § 2255 petition challenging his federal conviction of three counts of possession with the intent to distribute marijuana, one count of conspiracy to possess with the intent to distribute marijuana, and one count of money laundering. He 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-40417 Document: 00514276147 Page: 2 Date Filed: 12/18/2017 No. 17-40417 argues that the district court erred by dismissing his § 2255 petition for lack of jurisdiction as an unauthorized successive petition. In 1996, Cisneros filed a post-conviction motion, which was recharacterized by the district court as a § 2255 motion. Because Cisneros was not notified of the district court’s intent to treat his motion as a § 2255 motion and was not afforded the opportunity to withdraw the motion or to amend it to include all of his § 2255 claims, it cannot count as an initial § 2255 motion and cannot be used to bar a second or successive § 2255 motion. See Castro v. United States, 540 U.S. 375, 383 (2003). In 1998, Cisneros filed a § 2255 motion, which the district court denied without addressing the merits of his claims. Cisneros subsequently filed a motion for reconsideration of that order, arguing that the district court had not considered the merits of his § 2255 motion. The district court denied the motion. Cisneros then sought a COA. In an order issued prior to the Supreme Court’s decision in Castro, a COA was denied on the grounds that Cisneros’s 1998 § 2255 motion was an unauthorized, successive motion. Because his first postconviction motion does not count as an initial § 2255 motion, see Castro, 540 U.S. at 383, his 1998 motion should not have been treated as successive, cf. McDaniel v. United States, 242 F. App’x 217, 218 (5th Cir. 2007). As such, his February 2017 motion also should not have been treated as successive. Consequently, Cisneros has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We therefore GRANT both the motion for a COA and the motion for leave to proceed in forma pauperis, VACATE the district court’s judgment, and REMAND to the district 2 Case: 17-40417 Document: 00514276147 Page: 3 Date Filed: 12/18/2017 No. 17-40417 court for further proceedings. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998); FED. R. APP. P. 24. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
