United States v. Moreno-Rios , 96 F. App'x 245 ( 2004 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   May 6, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-41445
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ADOLFO MORENO-RIOS, also known as
    Juan Herrera-Martinez, also known as
    Jesus Felix Sustaita,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC Nos. L-00-CV-100
    L-97-CR-149-1
    --------------------
    Before GARWOOD, EMILIO M. GARZA, and PRADO, Circuit Judges.
    PER CURIAM:*
    Adolfo Moreno-Rios, federal prisoner number 71268-079,
    requests a certificate of appealability (COA) to appeal the
    district court’s denial of his 
    28 U.S.C. § 2255
     motion.        This
    court must examine the basis of its jurisdiction on its own
    motion if necessary.    Mosley v. Cozby, 
    813 F.2d 659
    , 660 (5th
    Cir. 1987).    An examination of the record in this case discloses
    *
    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    that this opinion should not be published and is not precedent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. 03-41445
    -2-
    that no final judgment has been entered as a separate document as
    required by FED. R. CIV. P. 58.   See Baker v. Mercedes Benz of N.
    Am., 
    114 F.3d 57
    , 60 (5th Cir. 1997).
    If we were to treat the order of May 31, 2001, as a Rule 58
    judgment, Moreno’s pro se notice of appeal, which is stamped as
    filed on April 14, 2002, is untimely.      See FED. R. APP. P.
    4(a)(1).   Moreover, both the motions to reopen the time to file a
    notice of appeal or to extend time to file a notice of appeal are
    nullities, as neither meet the requirements of FED. R. APP. P.
    4(a)(5) or (6).    See Wilkens v. Johnson, 
    238 F.3d 328
    , 330-31
    (5th Cir. 2001).
    Because, under the peculiar facts of this case, it would be
    unjust to apply the amendments to FED. R. CIV. P. 58 effective
    December 1, 2002, we conclude that the appeal must be dismissed
    pursuant to the procedure set out in Townsend v. Lucas, 
    745 F.2d 933
    , 934 (5th Cir. 1984).    See Burt v. Ware, 
    14 F.3d 256
    , 258-59
    (5th Cir. 1994).   Moreno may rectify the lack of a separate
    document judgment by filing in the district court a motion
    requesting the entry of a Rule 58 judgment.      See 
    id.
       After a
    Rule 58 judgment is entered, a new notice of appeal must be filed
    within the time prescribed by Rule 4(a)(1).      See 
    id.
    APPEAL DISMISSED; COA DENIED AS MOOT.
    

Document Info

Docket Number: 03-41445

Citation Numbers: 96 F. App'x 245

Judges: Emilio, Garwood, Garza, Per Curiam, Prado

Filed Date: 5/6/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023