United States v. German Duque , 636 F. App'x 884 ( 2010 )


Menu:
  •      Case: 09-20640     Document: 00511125131          Page: 1    Date Filed: 05/28/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 28, 2010
    No. 09-20640
    Summary Calendar                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    GERMAN DUQUE,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:90-CR-424-2
    Before GARZA, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM:*
    German Duque, federal prisoner # 54991-079, appeals the district court’s
    summary denial of his challenge to the validity of his indictment, filed pursuant
    to F ED. R. C RIM. P. 12(b)(3)(B). Duque filed this motion after his conviction was
    affirmed on appeal and the expiration of the time for seeking certiorari. Because
    the criminal proceedings were no longer pending, this motion was unauthorized
    and without a jurisdictional basis. See United States v. Early, 
    27 F.3d 140
    , 142
    (5th Cir. 1994). Because Duque was not challenging his sentence, his motion
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-20640    Document: 00511125131 Page: 2        Date Filed: 05/28/2010
    No. 09-20640
    could not be construed as arising under 
    18 U.S.C. § 3582
     or F ED. R. C RIM. P. 35.
    Moreover, it cannot be construed as a 
    28 U.S.C. § 2255
     motion to vacate, set
    aside, or correct his sentence because Duque has already filed one § 2255 motion
    that was addressed on the merits and a new motion would be subject to the
    jurisdictional bar of 
    28 U.S.C. § 2244
    (b)(3)(A). See United States v. Key, 
    205 F.3d 773
    , 774 (5th Cir. 2000).
    Duque has thus “appealed from the denial of a meaningless, unauthorized
    motion.” Early, 
    27 F.3d at 142
    . Accordingly, the judgment of the district court
    denying relief on Duque’s motion is AFFIRMED. See 
    id.
    2
    

Document Info

Docket Number: 09-20640

Citation Numbers: 636 F. App'x 884

Judges: Garza, Clement, Owen

Filed Date: 5/28/2010

Precedential Status: Non-Precedential

Modified Date: 10/19/2024