United States v. Callahan , 70 F. App'x 179 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30244
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN E. CALLAHAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CR-69-B
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Justin E. Callahan, federal prisoner # 03245-095, is
currently serving a 180-month sentence for being a felon in
possession of a firearm. Callahan requests a certificate of
appealability (“COA”) to appeal the district court’s denial of
his motion to file an out-of-time 28 U.S.C. § 2255 motion.
Because Callahan’s motion did not request habeas relief, he need
not obtain a COA in order to proceed on appeal. Accordingly, his
request for COA is DENIED AS UNNECESSARY.
*
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that this opinion should not be published and is not precedent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. 03-30244
-2-
Callahan’s motion to file an out-of-time 28 U.S.C. § 2255motion was not accompanied by a 28 U.S.C. § 2255 motion on the
merits. We agree with the reasoning of United States v. Leon,
203 F.3d 162 (2d Cir. 2000), and conclude “that a federal court
lacks jurisdiction to consider the timeliness of a § 2255
[motion] until a [motion] is actually filed.” Id. at 163.
Before the motion itself is filed, “there is no case or
controversy to be heard, and any opinion we were to render on the
timeliness issue would be merely advisory.” Id. Accordingly,
the district court’s denial of Callahan’s motion is AFFIRMED
because the district court lacked jurisdiction to entertain the
motion.
COA DENIED AS UNNECESSARY; AFFIRMED.