United States v. Baldomino

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-10095
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEX BALDOMINO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:00-CR-50-ALL
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
The current appeal represents Alex Baldomino’s second
attempt to appeal his guilty-plea conviction for being a felon in
possession of a firearm. Baldomino’s initial appeal was
dismissed when counsel failed to timely order the transcript and
make necessary financial arrangements. See United States v.
Baldomino, No. 00-11302 (5th Cir. Dec. 11, 2000) (unpublished).
Baldomino filed a pro se 28 U.S.C. § 2255 motion requesting
an out-of-time appeal due to ineffective assistance of counsel.
*
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that this opinion should not be published and is not precedent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. 03-10095
-2-
The district court determined that Baldomino was entitled to
relief. Accordingly, the district court reentered the underlying
criminal judgment on the docket, appointed Baldomino’s trial
counsel to represent him on appeal, and instructed counsel
regarding the date that the notice of appeal was due.
Notwithstanding the district court’s order, counsel did not
file the notice of appeal until more than six months had elapsed.
Accordingly, the notice of appeal is untimely. See FED. R. APP.
P. 4(b)(1). A timely notice of appeal is a prerequisite to the
exercise of jurisdiction by this court. United States v.
Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). Because
Baldomino’s notice of appeal is untimely, the appeal is
DISMISSED FOR LACK OF JURISDICTION.
By failing to file a timely notice of appeal on Baldomino’s
behalf, Guinn has failed to satisfy his duties as appointed
counsel. Accordingly, IT IS ORDERED that no payment be given to
Guinn for the time he spent working on this appeal.