No. 99-20566 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20566 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HAROLD TORRES PEDROZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-93-CR-259-2 -------------------- March 17, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Harold Torres Pedroza (“Pedroza”) appeals the district

court’s denial of his pro se petition for a writ of mandamus

seeking the return of $6,450 in cash civilly forfeited to the

United States and challenging his sentence to pay a $10,000 fine

for a 1994 drug-trafficking conviction.

The Government argues that Pedroza’s notice of appeal, filed

thirteen days after the entry of judgment below, was untimely.

The Government’s argument relies on the assumption that this is a

criminal appeal to which Fed. R. App. 4(b)(1)’s ten-day notice-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20566 -2-

of-appeal period applied. However, because Pedroza’s appeal from

the denial of his petition for a writ of mandamus seeks

underlying relief that is civil in nature, the appropriate

notice-of-appeal period was in fact 60 days, making Pedroza’s

notice of appeal timely. See Fed. R. Crim. P. 4(a)(1)(B); Pena

v. United States,

(5th Cir. 1997).

The writ of mandamus is an extraordinary remedy available

only where the petitioner establishes “(1) a clear right to the

relief, (2) a clear duty by the respondent to do the act

requested, and (3) the lack of any other adequate remedy.” In re

Stone,

(5th Cir. 1997). The district court

denied Pedroza’s writ of mandamus on the ground that Pedroza

forfeited the seized cash in a September 1994 Agreed Order of

Forfeiture and Dismissal. Essentially, this is a finding that

Pedroza failed to establish a clear right to relief with respect

to his request for return of the property. See Stone,

.

Regarding both his request for return of the cash and for

correction of his sentence, Pedroza has failed to establish the

lack of any adequate remedy other than a writ of mandamus. A

request for the return of seized property can be asserted in a

civil action under

, see Pena,

,

and a post-conviction challenge to a federal criminal sentence

can be asserted in a

motion. Therefore, the

district court did not err in denying Pedroza’s petition for a

writ of mandamus. No. 99-20566 -3-

Moreover, Pedroza’s appeal would fail even if his pro se

petition for a writ of mandamus were liberally construed as other

pleadings directly requesting the underlying relief. See Nerren

v. Livingston Police Dep't,

, 472 & n.16 (5th Cir.

1996) (holding that pro se pleadings should be liberally

construed). If Pedroza’s request for return of property in his

petition for a writ of mandamus were treated as a civil complaint

under

, the district court’s denial of that

petition would be considered a grant of summary judgment, which

we review de novo. See United States v. Robinson,

(5th Cir. 1996).

Pedroza asserts that he was not provided timely and proper

notice regarding the initiation of the civil forfeiture

proceeding with respect to the seized cash. However, Pedroza

acknowledges the September 1994 Agreed Order of Forfeiture and

Dismissal and does not assert that his counsel executed the

Agreed Order without his knowledge or consent. Since the Agreed

Order expressly resolved all civil claims between the parties and

ordered that the $6,450 now demanded by Pedroza be forfeited to

the United States, there is no genuine issue of material fact and

the Government is entitled to judgment as a matter of law.

To the extent that Pedroza’s petition for a writ of mandamus

challenges his sentence to pay a $10,000 fine, we construe it as

a

motion. However, since Pedroza has already

previously filed a § 2255 motion in this case, he is required to

request permission from this court prior to filing a successive

§ 2255 motion in the district court. See § 2244(b)(3)(A). Thus, No. 99-20566 -4-

the district court was without jurisdiction to review any claim

arising under § 2255.

Therefore, the district court’s judgment denying Pedroza’s

petition for a writ of mandamus is AFFIRMED.