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United States v. Cluck, 98-50682 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-50682 Visitors: 39
Filed: Aug. 12, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-50440 cons/w No. 98-50682 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELWOOD CLUCK, also known as Jack Cluck, Defendant-Appellant. - - - - - - - - - - Appeals from the United States District Court for the Western District of Texas USDC No. SA-95-CR-99-1 - - - - - - - - - - July 27, 1999 Before SMITH, BARKSDALE, and PARKER, Circuit Judges. PER CURIAM:* In case number 98-50440, Elwood Cluck, also known as
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-50440 cons/w
                           No. 98-50682
                         Summary Calendar



UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,

versus

ELWOOD CLUCK, also known as Jack Cluck,

                                            Defendant-Appellant.


                        - - - - - - - - - -
          Appeals from the United States District Court
                for the Western District of Texas
                      USDC No. SA-95-CR-99-1
                        - - - - - - - - - -

                            July 27, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     In case number 98-50440, Elwood Cluck, also known as Jack

Cluck, appeals the district court’s orders of denial regarding

his motion to rescind judgment, his motion for rehearing of his

motion to rescind judgment, and his applications for writs of

audita querela and coram nobis.   In case number 98-50682, Cluck

appeals the district court’s order of denial regarding his

subsequent application for writ of coram nobis.     We sua sponte



     *
        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that this opinion should not be published and is not precedent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.
                    Nos. 98-50440 c/w 98-50682
                                -2-

consolidate the appeals because they are so closely related.

Fed. R. App. P. 3(b)(2).

     Cluck has filed a motion to expedite appeal and a motion for

initial hearing en banc.   Because Cluck can neither show good

cause to expedite the appeal nor meet the stringent standards for

cases warranting en banc consideration, both motions are DENIED.

5th Cir. R. 27.6; Fed. R. App. P. 35(a).

     Cluck argues that the district court erred by denying all of

his motions and applications filed in the district court while

the appeal from his judgment of conviction and sentence was

pending.   As correctly stated by the district court, it had no

jurisdiction to consider Cluck’s pleadings.   See United States v.

Hitchmon, 
602 F.2d 689
, 692-94 (5th Cir. 1979).   Accordingly, the

judgment of the district court is AFFIRMED.

Source:  CourtListener

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