United States v. Berry

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 24, 2008
No. 06-41696
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTONIO BERRY, also known as Tony Berry
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:96-CV-722
USDC No. 1:92-CR-93-1
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Antonio Berry, federal prisoner # 03256-043, was convicted in 1993 of
conspiracy to distribute cocaine. Berry filed the instant “Motion for Relief
pursuant to FED. R. CIV. P. 60(b)(4) & (6),” challenging the district court’s order
denying his initial motion under 28 U.S.C. § 2255. Berry has applied to this
court for a certificate of appealability (COA) from the district court’s order
denying the Rule 60(b) motion. See 28 U.S.C. § 2253(c)(1)(B).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41696
Berry complained below that his attorney rendered ineffective assistance
in advising him about the extent of his exposure at sentencing; that the district
court erred at sentencing in adjusting his offense level because of his leadership
role and because he obstructed justice; and that the application to him of
amended versions of the Guidelines Manual violated the Ex Post Facto Clause.
Berry contended that the district court’s order denying the § 2255 motion was
“void” because the district court failed to dispose of these issues in that order.
Because the substantive issues raised in the Rule 60(b) motion challenge
the judgment of conviction and sentence, we regard the motion as a § 2255
motion. See Gonzalez v. Crosby, 545 U.S. 524, 530–32 & n. 4 (2005). Berry has
not obtained leave of this court to file a successive § 2255 motion. See 28 U.S.C.
§ 2244(b)(3)(A); § 2255. Because § 2244(b)(3)(A) “acts as a jurisdictional bar to
the district court’s asserting jurisdiction over any successive habeas petition
until this court has granted the petitioner permission to file one,” the district
court was without jurisdiction to consider the action. See United States v. Key,
205 F.3d 773, 774 (5th Cir. 2000). Accordingly, the appeal does not deserve
encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). The request for a COA is DENIED.
Berry has failed to heed our warning in United States v. Berry, No. 02-
40286 (5th Cir. Sept. 30, 2002) (unpublished), that frivolous filings will result
in the imposition of a sanction. Berry shall pay a monetary SANCTION to the
clerk of this court in the amount of $100. The clerk of this court and the clerks
of all federal district courts within this circuit are directed to refuse to file any
pro se pleading from Berry challenging his conviction or sentence unless Berry
submits proof of satisfaction of this sanction. If Berry attempts to file in this
court any such pleadings, the clerk will docket them for administrative purposes
only. Any submissions which do not show proof that the sanction has been paid
will neither be addressed nor acknowledged.
COA DENIED; SANCTION IMPOSED.
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