Summary Calendar UNITED STATES OF AMERICA v. Merrick Joseph Young

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30663
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MERRICK JOSEPH YOUNG
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-60022-1
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January 9, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Merrick Joseph Young (federal prisoner #09590-035) appeals
the district court’s summary denial of his motion for leave to
file an out-of-time direct criminal appeal. He argues that he is
entitled to an out-of-time direct criminal appeal due to his
attorney’s ineffectiveness in failing “to consult with him about
taking an appeal and the time limitations thereto” and that the
district court, in the very least, should have held an
evidentiary hearing on his claim.

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No. 01-30663
-2-
Federal Rule of Appellate Procedure 4(b)(4) authorizes a
district court, upon a showing of good cause or excusable
neglect, to extend the time to file a notice of appeal for up to
30 days following the expiration of the initial 10-day appeals
period. Young’s motion for leave to file an out-of-time appeal,
however, was filed well beyond that time frame. Given the nature
of Young’s claim, the Government maintains that Young’s motion is
actually a 28 U.S.C. § 2255 motion, which would necessitate a
ruling in the district court about whether a certificate of
appealability should issue. See United States v. West, 240 F.3d
456, 459 (5th Cir. 2001); United States v. Youngblood, 116 F.3d
1113, 1114-15 (5th Cir. 1997). In his reply brief, Young opposes
the recharacterization of his motion as a § 2255 motion due to
the potential adverse consequences that could result under the
successive provisions of the Antiterrorism and Effective Death
Penalty Act.
There is no indication that the district court construed
Young’s motion as a § 2255 motion. Moreover, given Young’s
argument in his reply brief, there is no need for this court to
construe his motion in that fashion. See United States v.
Hanyard, 762 F.2d 1226, 1230 n.1 (5th Cir. 1985). Without such a
construction, however, Young’s motion is nothing more than an
unauthorized motion. See FED. R. APP. P. 4(b)(4). Accordingly,
the district court’s denial of the motion is AFFIRMED. See
United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994).
AFFIRMED.

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