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

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-60022-1 -------------------- 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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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

motion, which would necessitate a

ruling in the district court about whether a certificate of

appealability should issue. See United States v. West,

(5th Cir. 2001); United States v. Youngblood,

(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,

, 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,

(5th Cir. 1994).

AFFIRMED.