United States v. Moreno-Rios , 96 F. App'x 245 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 6, 2004
Charles R. Fulbruge III
Clerk
No. 03-41445
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADOLFO MORENO-RIOS, also known as
Juan Herrera-Martinez, also known as
Jesus Felix Sustaita,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. L-00-CV-100
L-97-CR-149-1
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Before GARWOOD, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Adolfo Moreno-Rios, federal prisoner number 71268-079,
requests a certificate of appealability (COA) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion. 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
*
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that this opinion should not be published and is not precedent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. 03-41445
-2-
that no final judgment has been entered as a separate document as
required by FED. R. CIV. P. 58. See Baker v. Mercedes Benz of N.
Am., 114 F.3d 57, 60 (5th Cir. 1997).
If we were to treat the order of May 31, 2001, as a Rule 58
judgment, Moreno’s pro se notice of appeal, which is stamped as
filed on April 14, 2002, is untimely. See FED. R. APP. P.
4(a)(1). Moreover, both the motions to reopen the time to file a
notice of appeal or to extend time to file a notice of appeal are
nullities, as neither meet the requirements of FED. R. APP. P.
4(a)(5) or (6). See Wilkens v. Johnson, 238 F.3d 328, 330-31
(5th Cir. 2001).
Because, under the peculiar facts of this case, it would be
unjust to apply the amendments to FED. R. CIV. P. 58 effective
December 1, 2002, we conclude that the appeal must be dismissed
pursuant to the procedure set out in Townsend v. Lucas, 745 F.2d
933, 934 (5th Cir. 1984). See Burt v. Ware, 14 F.3d 256, 258-59
(5th Cir. 1994). Moreno may rectify the lack of a separate
document judgment by filing in the district court a motion
requesting the entry of a Rule 58 judgment. See id. After a
Rule 58 judgment is entered, a new notice of appeal must be filed
within the time prescribed by Rule 4(a)(1). See id.APPEAL DISMISSED; COA DENIED AS MOOT.