United States v. Homero Martinez

Case: 16-11398 Document: 00514123750 Page: 1 Date Filed: 08/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11398 FILED
August 21, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
HOMERO MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CV-544
USDC No. 4:12-CR-209-1
Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Homero Martinez, federal prisoner # 45120-177, moves for a certificate
of appealability (COA) to appeal the denial of his motion to amend his 28 U.S.C.
§ 2255 motion, which had been denied approximately ten months earlier. As
Martinez is not seeking to appeal from the final order in a habeas proceeding,
he does not need a COA. See 28 U.S.C. § 2253(c)(1). A COA is therefore
DENIED as unnecessary. See id.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-11398 Document: 00514123750 Page: 2 Date Filed: 08/21/2017
No. 16-11398
Once a final judgment has been entered, a plaintiff may seek to amend
only by appealing or by seeking to alter or amend the judgment pursuant to
Federal Rule of Civil Procedure 59 or 60. See, e.g., Rosenzweig v. Azurix Corp.,
332 F.3d 854, 864 (5th Cir. 2003). Martinez’s motion to amend pursuant to
Federal Rule of Civil Procedure 15, which was filed well after the entry of the
final judgment denying his § 2255 motion, was a “meaningless, unauthorized
motion” over which the district court lacked jurisdiction. See United States v.
Early, 27 F.3d 140, 142 (5th Cir. 1994). Because Martinez has appealed from
the denial of unauthorized motion, we AFFIRM the district court’s ruling.
2