United States v. Wynn ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2004
Charles R. Fulbruge III
Clerk
No. 04-10455
USDC No. 4:01-CV-18-A
USDC No. 4:96-CR-68-19-A
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STACEY WYNN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Stacey Wynn, federal prisoner # 29140-077, was convicted of
conspiracy to distribute cocaine and cocaine base and other
related counts, and his conviction was affirmed on direct appeal.
Wynn filed a 28 U.S.C. § 2255 motion that was dismissed in the
district court as untimely. This court, in appeal No. 02-11274,
granted Wynn a certificate of appealability on the issue of
equitable tolling. While Wynn’s appeal in No. 02-11274 was
pending before this court, he filed a motion under 28 U.S.C.
*
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this opinion should not be published and is not precedent except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. 04-10455
-2-
§ 1361 in the district court seeking to compel the Government and
its agents to produce a document that pertains to the merits of
his 28 U.S.C. § 2255 motion. The district court denied Wynn’s 28
U.S.C. § 1361 motion, and he now appeals that denial.
After Wynn’s 28 U.S.C. § 1361 motion was denied, we affirmed
the district court’s dismissal of his 28 U.S.C. § 2255 motion as
untimely. United States v. Wynn, No. 02-11274 (5th Cir. June 16,
2004). We also denied Wynn’s request for rehearing in that case,
and the deadline for filing a certiorari petition has now
expired. Wynn’s current appeal is thus moot. See United States
v. Clark, 193 F.3d 845, 847-48 (5th Cir. 1999); Rocky v. King,
900 F.2d 864, 867 (5th Cir. 1990). Hence, we have no
jurisdiction over this appeal. Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990).
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or,
alternatively, to summarily affirm the district court’s judgment
or grant an extension of time for filing an appellate brief.
IT IS ORDERED that the Government’s motion to dismiss is
GRANTED, this appeal is DISMISSED, and all other outstanding
motions are DENIED AS MOOT.