Filed: Aug. 27, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-30015 Conference Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALLEN JERRY FIELDS, JR., Defendant-Appellant. - - - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-512 USDC No. 93-CR-10011-2 - - - - - - - - - - - August 26, 1999 Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* This court must examine the basis of its ju
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-30015 Conference Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALLEN JERRY FIELDS, JR., Defendant-Appellant. - - - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-512 USDC No. 93-CR-10011-2 - - - - - - - - - - - August 26, 1999 Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* This court must examine the basis of its jur..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-30015
Conference Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN JERRY FIELDS, JR.,
Defendant-Appellant.
- - - - - - - - - - -
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CV-512
USDC No. 93-CR-10011-2
- - - - - - - - - - -
August 26, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
This court must examine the basis of its jurisdiction on its
own motion if necessary. Mosley v. Cozby,
813 F.2d 659, 660 (5th
Cir. 1987). An examination of the record in this case discloses
that the notice of appeal is ineffective.
Allen Jerry Fields, Jr., federal prisoner #08388-035, seeks
a certificate of appealability (COA) to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion. The final
*
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that this opinion should not be published and is not precedent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. 99-30015
-2-
judgment was entered on December 11, 1998. On December 28, 1998,
Fields filed both a notice of appeal and a motion to reconsider.
The district court has not ruled on the motion to reconsider.
Rule 4(a)(4), Fed. R. App. P., provides that, if a timely
motion is made pursuant to Fed. R. Civ. P. 59(e), a notice of
appeal filed after entry of the judgment, but before disposition
of the motion, is ineffective until the entry of the order
disposing of the motion. A motion requesting reconsideration of
the judgment is treated as a Rule 59 motion for purposes of Rule
4(a)(4)(iv), regardless of the label applied to the motion, if it
is made within the 10-day limit for Rule 59 motions. Mangieri v.
Clifton,
29 F.3d 1012, 1015 n.5 (5th Cir. 1994); Harcon Barge Co.
v. D & G Boat Rentals, Inc.,
784 F.2d 665, 667 (5th Cir.) (en
banc), cert. denied,
479 U.S. 930 (1986). In the present case,
Fields’ December 28 motion must be treated as a Rule 59(e)
motion; it seeks reconsideration, and it was filed within ten
days of entry of the judgment, excluding Saturdays, Sundays, and
the intermediate legal holiday. See FED. R. CIV. P. 6(a).
The district court’s order denying a COA cannot be construed
as disposing of the Rule 59(e) motion because there is no
indication that the court considered the Rule 59(e) motion in
denying a COA. As the Rule 59(e) motion has not yet been
disposed of, the petitioner’s notice of appeal is ineffective.
See Burt v. Ware,
14 F.3d 256, 260-61 (5th Cir. 1994).
Accordingly, the case must be remanded, and the record returned
to the district court, for consideration of the outstanding
No. 99-30015
-3-
motion as expeditiously as possible, consistent with a just and
fair disposition thereof. See
id. at 261. Fields’ COA motion
and motion to expedite the COA proceedings shall be held in
abeyance until his notice of appeal is effective. We instruct
the clerk of this court to process the pending motions
immediately upon the return of this case from the district court.
REMANDED.