United States v. Hall ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50838
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEVENSTON HALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CR-6-ALL
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October 18, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Levenston Hall, federal prisoner # 82299-080, appeals the
district court’s denial of a postconviction motion that he
characterized as a “Notice of Ex Parte Petition: Ex Parte
Petition Re: Fraud on the Court; Request for Summary Judgment.”
Hall’s motion was filed in the district court as part of the
criminal proceeding that resulted in his conviction for
possession of cocaine base with intent to distribute. On appeal,
Hall argues that (1) the district court erred when it failed to
observe that the Fourth Amendment requires a warrantless search
*
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that this opinion should not be published and is not precedent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. 99-50838
-2-
be based on probable cause; (2) the district court erred by not
suppressing the fruits of an illegal search and by imposing a
two-level increase for Hall’s role as a leader or organizer; and
(3) the prosecutor misled the jury with false statements and
misconduct. He does not brief any of the issues raised in his
original postconviction motion. As such, these issues are deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
In a separate motion, Hall insists that his postconviction
motion should be construed as a motion to arrest judgment.
However, a Fed. R. Crim. P. 34 motion to arrest judgment must be
filed within seven days after the verdict or within such further
time as the court may fix during the seven-day period. Hall did
not file his ex parte motion until almost nine months after the
verdict, and the district court did not grant leave for a Rule 34
motion to be filed at a later date. As such, the district court
was without jurisdiction to entertain Hall’s postconviction
motion. See Massicot v. United States, 254 F.2d 58, 61 (5th Cir.
1958). Accordingly, the district court’s denial of Hall’s
postconviction motion is AFFIRMED. See Bickford v. International
Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981)(this court
may affirm on grounds different from those employed by the
district court). His motion on appeal is DENIED.