United States v. Stevenson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31386
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMAN STEVENSON, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-1932-S
USDC No. 95-CR-377-3-S
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June 28, 2000
Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
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
that the notice of appeal is ineffective.
Herman Stevenson, III, federal prisoner # 24905-034, seeks
leave to proceed in forma pauperis (IFP) on appeal and a
certificate of appealability (COA) to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion. This court must examine
*
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that this opinion should not be published and is not precedent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. 99-31386
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the basis of its jurisdiction on its own motion if necessary.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
Stevenson’s “Timely Objection to the District Judge Denial
Order of Movant ‘2255’ Motion and Request for Preliminary
Consideration for Appellate De Novo Review,” which was docketed
as his notice of appeal, does not clearly evince his intent to
appeal as he directed the motion to the district court and asked
that the district court withdraw its order. Because Stevenson’s
“objection” was filed within the 10-day period and requested
relief from the district court’s judgment, it is more properly
treated as a Rule 59(e) motion. Mangieri v. Clifton, 29 F.3d
1012, 1015 n.5 (5th Cir. 1994); Harcon Barge Co. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 668-69 (5th Cir. 1986)(en banc).
The district court’s order denying a COA cannot be construed
as disposing of the Rule 59(e) motion because there is no
indication that the court considered the Rule 59(e) motion in
denying a COA. Stevenson’s “petition” for review, which was
filed within the period allowed for noticing an appeal, clearly
evinces Stevenson’s intent to appeal to this court: the petition
is addressed to this court, it seeks review of the district court
orders, and it specifically seeks relief from this court. Under
Fed. R. App. P. 4(a)(4)(B)(i), Stevenson’s notice of appeal
(i.e., the “petition”) is ineffective until the date of entry of
an order disposing of the Rule 59(e) motion. See Burt v. Ware,
14 F.3d 256, 260-61 (5th Cir. 1994). Accordingly, the case must
be remanded, and the record returned to the district court, for
consideration of the outstanding motion as expeditiously as
possible, consistent with a just and fair disposition thereof.
See id. at 261.
No. 99-31386
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REMANDED.