Filed: Jul. 06, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 6, 2007 Charles R. Fulbruge III No. 06-60213 Clerk Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANNY HUBBARD, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Mississippi No. 5:04-CV-89 No. 5:03-CR-1 - Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Danny Hubbard, a federal prisoner, seeks a
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 6, 2007 Charles R. Fulbruge III No. 06-60213 Clerk Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANNY HUBBARD, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Mississippi No. 5:04-CV-89 No. 5:03-CR-1 - Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Danny Hubbard, a federal prisoner, seeks a c..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2007
Charles R. Fulbruge III
No. 06-60213 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY HUBBARD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
No. 5:04-CV-89
No. 5:03-CR-1
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Danny Hubbard, a federal prisoner, seeks a certificate of ap-
pealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255
motion as barred by his appeal waiver. Giving Hubbard the benefit
of liberal construction of his filings, we glean that he argues
that trial counsel was ineffective for failing to (1) file a notice
*
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opinion should not be published and is not precedent except under the limited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. 06-60213
-2-
of appeal; (2) provide him with a copy of the plea agreement until
three days after sentencing; and (3) advise him of the contents of
the plea agreement. He indicates that his plea and his appeal were
not knowingly and voluntarily entered and that he suffers from se-
vere glaucoma that limited his ability to read the terms of the
plea agreement.
A COA may be issued only if Hubbard has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 336 (2003).
When the denial of relief is based on procedural grounds without
analysis of the underlying constitutional claims, “a COA should
issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the [motion] states a valid claim
of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484
(2000).
The record reflects that Hubbard wrote a letter to the dis-
trict court, filed on August 11, 2003, seeking reconsideration of
his sentence or alternatively that his letter serve as his notice
of appeal; the letter should have been construed as a timely filed
motion for reconsideration of the August 15, 2003, judgment of con-
viction. See Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987);
United States v. Greenwood,
974 F.2d 1449, 1465-66 (5th Cir. 1992).
Hubbard’s motion for reconsideration thus effectively tolled the
No. 06-60213
-3-
ten-day period for filing a timely notice of appeal. See United
States v. Brewer,
60 F.3d 1142, 1143-44 (5th Cir. 1995); FED. R.
APP. P. 4(b)(1)(A). Because a motion for reconsideration in a crim-
inal case also destroys the finality of the underlying decision,
the August 15, 2003, judgment is not final. See
Brewer, 60 F.3d at
1143-44; United States v. Hatten,
167 F.3d 884, 886 n.2 (5th Cir.
1999). Hubbard’s § 2255 motion is therefore premature. See Fass-
ler v. United States,
858 F.2d 1016, 1019 (5th Cir. 1988) (holding
that “a criminal defendant may not collaterally attack his convic-
tion until it has been affirmed on direct appeal”).
Accordingly, the motion for a COA is granted. The order deny-
ing Hubbard’s § 2255 motion is vacated, and the matter is remanded.
The district court is instructed to (1) dismiss Hubbard’s § 2255
motion without prejudice; (2) construe his letter filed on Aug-
ust 11, 2003, as a timely filed motion for reconsideration of his
sentence; and (3) advise him that he may file a notice of appeal
within ten days of the entry of the ruling on his motion for recon-
sideration of sentence.
COA GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS.