United States v. Matthews ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50179
No. 97-50214
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTUMUS CHARLES MATTHEWS,
Defendant-Appellant.
- - - - - - - - - -
Appeals from the United States District Court
for the Western District of Texas
USDC No. W-93-CR-9-1
USDC No. W-96-CV-462
- - - - - - - - - -
August 15, 1997
Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.
PER CURIAM:*
Artumus Charles Matthews, federal prisoner #60704-080, seeks
to appeal from the grant of the Government’s motion to reduce his
sentence and from the denial of his own motion for relief under
28 U.S.C. § 2255. Matthews moves to strike the appellee’s brief;
his motion to strike is DENIED.
We must examine the basis of our jurisdiction on our own
motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
*
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that this opinion should not be published and is not precedent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. 97-50179
No. 97-50214
-2-
Cir. 1987). A timely notice of appeal is a prerequisite for the
exercise of our jurisdiction. United States v. Carr, 979 F.2d
51, 55 (5th Cir. 1992). Matthews did not file a timely notice of
appeal following the order granting the Government’s motion for
reduction of sentence; accordingly, appeal no. 97-50179 is
DISMISSED for want of jurisdiction.
On April 24, 1996, the President signed the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), which applies to
the instant case because Matthews’s motion was filed in the
district court after April 24, 1996. See Green v. Johnson, 116
F.3d 1115 (5th Cir. 1997). The AEDPA amended 28 U.S.C. § 2253 to
require a certificate of appealability (COA) by a circuit justice
or judge before an appeal may be taken in a § 2255 proceeding.
§ 2253(c)(1). A COA may be issued only if the prisoner has made
a “substantial showing of the denial of a constitutional right.”
§ 2253(c)(2).
The district court must rule on a COA before Matthews may
request a COA from this court. See Muniz v. Johnson, 114 F.3d
43, 45 (5th Cir. 1997); United States v. Youngblood, 116 F.3d
1113 (5th Cir. 1997). Accordingly, Matthews’s § 2255 case,
appeal no. 97-50214, is REMANDED for the limited purpose of
allowing the district court to determine whether any of the
issues Matthews wishes to raise merit granting Matthews a COA.
Appeal no. 97-50179 DISMISSED.
Appeal no. 97-50214 LIMITED REMAND.
No. 97-50179
No. 97-50214
-3-