United States v. Morris

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-60302
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALLEN MORRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:04-CV-72
USDC NO. 2:02-CR-74-1
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Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
James Allen Morris, federal prisoner # 11614-042, was
convicted following a guilty plea to possession with intent to
distribute in excess of five grams of a mixture and substance
containing cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B), and being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He was
sentenced to concurrent terms of 230 months and 120 months of
imprisonment. He filed a 28 U.S.C. § 2255 motion to vacate, set
*
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this opinion should not be published and is not precedent except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. 06-60302
-2-
aside, or correct his sentence. The district court dismissed
Morris’s claims, but preserved for further briefing Morris’s
claim regarding the drug quantity used to determine his sentence.
The record does not indicate that the district court has ruled
upon the drug quantity issue. Morris now seeks a certificate of
appealability (COA) to appeal the district court’s partial
dismissal of his § 2255 claims.
In general, courts of appeals have jurisdiction of appeals
from all final decisions of the district courts. 28 U.S.C.
§ 1291. Similarly, in a § 2255 proceeding, “the final order
shall be subject to review, on appeal, by the court of appeals
for the circuit in which the proceeding is held” and a COA is to
be issued from a “final order.” 28 U.S.C. § 2253(a) and (c)(1).
Moreover, the district court is required to “deny a COA as to
each issue presented by the applicant.” Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1998) (§ 2254 proceeding).
Given that the district court did not rule on and ordered
further briefing on Morris’s drug quantity claim, the judgment
denying Morris’s other § 2255 claims was not a final order and
appellate jurisdiction does not exist. See Young v. Herring, 777
F.2d 198, 202 (5th Cir. 1995). Accordingly, Morris’s motion for
COA is denied, and the appeal is dismissed for lack of
jurisdiction. Morris’s motion for leave to proceed IFP is also
denied.
MOTIONS DENIED; APPEAL DISMISSED.