Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2009

USA v. Leo Lloyd
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3489




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Recommended Citation
"USA v. Leo Lloyd" (2009). 2009 Decisions. Paper 1720.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1720


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HLD-46 (February 2009)                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-3489
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                                     LEO LLOYD,
                                              Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 07-cr-195)
                      District Judge: Honorable Louis H. Pollak
                     ____________________________________

        Submitted for a Certificate of Appealability or Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    February 27, 2009
          Before: SCIRICA, Chief Judge WEIS and GARTH, Circuit Judges

                               (Opinion filed March 19, 2009)
                                     _________

                                       OPINION
                                      _________

PER CURIAM.

             In September 2007, the appellant, Leo Lloyd, pleaded guilty to one count of

possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1), (b)(1)(B). The



                                           1
District Court sentenced Lloyd to a term of 110 months’ imprisonment followed by three

years of supervised release.

               Soon thereafter, Lloyd, proceeding pro se, filed a motion identified as a

“motion pursuant to Federal Rule of Criminal Procedure 32(e)(2).” (Dist. Ct. Dkt. # 32.)

In his motion, Lloyd challenged the constitutionality of his detention on various grounds,

including that he had received ineffective assistance of counsel. The District Court

determined that the motion should have been filed as a motion pursuant to 28 U.S.C. §

2255, and, pursuant to United States v. Miller, 

(3d Cir. 1999), directed

Lloyd to inform the court whether “he consent[ed] to reclassification of his . . . motion as

a petition pursuant to 28 U.S.C. § 2255, or whether he wishe[d] to resubmit his petition,

including the same or additional claims, on the standard § 2255 form.” (Dist. Ct. Order,

May 5, 2008, Dkt. # 33.) In response, Lloyd submitted a § 2255 motion on the standard

form. (Dist. Ct. Dkt. # 35.) Because he chose to resubmit his petition, the District Court

then entered an order dismissing as moot Lloyd’s previously filed “motion pursuant to

Federal Rule of Criminal Procedure 32(e)(2).” (Dist. Ct. Dkt. # 37.) Lloyd now appeals

from that order.1

               In his notice of appeal, Lloyd states that he seeks review of the District

Court’s order “denying the relief requested (Sentence Modification) pursuant to 28 U.S.C.

§ 2255.” (Dist. Ct. Dkt. # 38.) Thus, it appears that Lloyd believes that he has been



   1
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                               2
denied habeas relief. As noted above, however, the order from which Lloyd appeals

simply dismissed his initial filing as moot in light of the properly filed § 2255 motion that

followed; Lloyd’s § 2255 is still pending in the District Court. As such, we see no error

in the District Court’s order.

              Because this appeal does not present a substantial question, we will

summarily affirm the District Court’s order. 2 See Third Cir. LAR 27.4 and I.O.P. 10.6.




   2
    A certificate of appealability is not necessary for the purpose of this appeal. See 28
U.S.C. § 2253(a).                          3