United States v. Reedy ( 2023 )

Case: 22-10708 Document: 00516763847 Page: 1 Date Filed: 05/25/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10708
Summary Calendar FILED
____________ May 25, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Thomas Reedy,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-54-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Thomas Reedy, federal prisoner # 25673-177, filed a notice of appeal
following the denial of his Federal Rule of Civil Procedure 60(b) motion for
relief from judgment. The district court denied the Rule 60(b) motion as
untimely. Reedy argues that a constitutional violation rendered his
conviction void, and that the time limit for a Rule 60(b) motion therefore did
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10708
not apply. He has also filed motions to compel and for summary disposition.
Reedy’s Rule 60(b) motion attacked his convictions on the merits, arguing
that they were unconstitutional due to the Supreme Court’s ruling in Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002), and due to the multiplicity of
the charges.
We have a continuing duty to consider, sua sponte, if necessary, the
basis of the district court’s jurisdiction and this court’s own jurisdiction. See
Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n.2 (5th Cir. 1987); Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987). To the extent that Reedy’s motion
was an attempt to attack the criminal judgment itself under Rule 60(b), he
appealed the denial of a “meaningless, unauthorized motion,” United States
v. Early, 27 F.3d 140, 142 (5th Cir. 1994), because the Federal Rules of Civil
Procedure do not apply to criminal cases. See Fed. R. Civ. P. 1; Fed. R.
Civ. P. 81. Accordingly, we dismiss the appeal, in part, as frivolous. See
5th Cir. R. 42.2.
To the extent that Reedy’s Rule 60(b) motion challenged the prior
denial of 28 U.S.C. § 2255 relief, the issuance of a COA is a jurisdictional
prerequisite. See Ochoa Canales v. Quarterman, 507 F.3d 884, 886-88 (5th
Cir. 2007); see also United States v. Jiminez-Garcia, 951 F.3d 704, 705 (5th
Cir. 2020). Although Reedy did not expressly request a COA, we construe
his notice of appeal as such a request. See Fed. R. App. P. 22(b)(2).
However, because the district court did not rule on whether Reedy is entitled
to a COA, we lack jurisdiction to consider it. Black v. Davis, 902 F.3d 541,
545 (5th Cir. 2018).
We decline to remand for a COA ruling because doing so would be
futile and a waste of judicial resources. United States v. Alvarez, 210 F.3d 309,
310 (5th Cir. 2000). A challenge to the denial of Rule 60(b) relief here would
be frivolous because the Rule 60(b) motion was indisputably, in reality, an
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No. 22-10708
unauthorized successive 28 U.S.C. § 2255 motion, which the district court
lacked jurisdiction to consider. See United States v. Hernandes, 708 F.3d 680,
681-82 (5th Cir. 2013); see also Gonzalez v. Crosby, 545 U.S. 524, 530-32 & n.4
(2005). Therefore, no reasonable jurist could conclude that the district court
abused its discretion in denying Reedy Rule 60(b) relief. See Hernandez v.
Thaler, 630 F.3d 420, 428 (5th Cir. 2011); see also 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483 (2000).
Accordingly, this appeal is DISMISSED in part as frivolous and in
part for lack of jurisdiction, and Reedy’s constructive COA request is
DENIED. See Alvarez, 210 F.3d at 310; see also Black, 902 F.3d at 545;
Ochoa Canales, 507 F.3d at 886-88. Reedy’s motions to compel and for
summary disposition are DENIED as moot.
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