United States v. Sorrells

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40873
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID SORRELLS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-96-CV-1083)
_________________________
August 14, 1997
Before JOLLY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
David Sorrells seeks a certificate of appealability (“COA”) in
order to appeal the denial of his motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. In accordance
with the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996),
* 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should not be published and is not precedent except under the limited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.
Sorrells filed a motion for a COA on December 20, 1996. We stayed
briefing pending the disposition of this motion, and we now order
the briefing schedule to be implemented.
The AEDPA amended 28 U.S.C. § 2253 to require the issuance of
a COA as a prerequisite to appealing the denial of a § 2255 motion.
In United States v. Orozco, 103 F.3d 389 (5th Cir. 1996), we held
that the COA requirement applies to § 2255 petitions in which the
notice of appeal was filed on or after the effective date of the
AEDPA, April 24, 1996. Id. at 390-92. Sorrells filed a notice of
appeal on July 22, 1996, and filed a motion for COA on December 20,
1996. We stayed briefing pending the disposition of this motion.1
The intervening decision in Lindh v. Murphy, 117 S. Ct. 2059(1997), however, eliminates the need to issue a COA in the instant
case. In Lindh, the Court concluded that the amendments to chapter
153 of title 28 apply only to cases filed after the effective date
of the AEDPA. Id. at 4561. Insofar as the COA requirement,
28 U.S.C. § 2253(c), falls within chapter 153 of title 28, Lindh
has overruled Orozco. Hence, the COA requirement applies only to
§ 2255 petitions filed after the effective date of the AEDPA.
United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997).
Sorrells filed the instant § 2255 petition on April 1, 1996.
Therefore, a COA is not needed to vest jurisdiction in this court.
Accordingly, we order that a briefing notice shall issue forthwith,
1
See Lucas v. Johnson, 101 F.3d 1045, 1046 (5th Cir. 1996).
2
instructing the United States to respond to Sorrells's brief, and
the appeal shall be submitted for consideration and action in
accordance with the usual procedures.
IT IS SO ORDERED.
3