Elawyers Elawyers
Ohio| Change

United States v. Chavez, 95-40431 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-40431 Visitors: 6
Filed: Apr. 23, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-40431 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDMUNDO LUIS CHAVEZ, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. M-95-CV-008 - - - - - - - - - - April 8, 1996 Before SMITH, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* Edmundo Chavez appeals the denial of his postjudgment motion for reconsideration of the or
More
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                            __________________

                               No. 95-40431
                             Summary Calendar
                            __________________


UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

EDMUNDO LUIS CHAVEZ,

                                             Defendant-Appellant.



                         - - - - - - - - - -
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. M-95-CV-008
                         - - - - - - - - - -
                            April 8, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*



      Edmundo Chavez appeals the denial of his postjudgment motion

for reconsideration of the order denying his motion for relief

pursuant to 28 U.S.C. § 2255.       We construe the motion for reconsid-

eration as a postjudgment motion for relief under FED. R. CIV. P.

60(b).    See Craig v. Lynaugh, 
846 F.2d 11
, 13 (5th Cir. 1988);

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).               The


      *
       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should not be published and is not precedent except under the limited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. 95-40431
                                 -2-

denial of a rule 60(b) does not bring up the underlying judgment

for review, and our review is limited to whether the district court

abused its discretion by denying the rule 60(b) motion.   Carimi v.

Royal Carribean Cruise Lines, 
959 F.2d 1344
, 1354 (5th Cir. 1992).

     Chavez contends that he was entitled to an evidentiary hearing

in the district court.   As review of the underlying judgment of the

district court is precluded, and this issue was not asserted in

Chavez's rule 60(b) motion, we decline to consider this issue.   See

Harrison v. Byrd, 
765 F.2d 501
, 503 (5th Cir. 1985).

     Chavez argues that he received ineffective assistance of

counsel because counsel failed to appeal and waived the polling of

the jury. Chavez contends that counsel was ineffective for failing

to object to the presentence report and failing to argue that the

Precursor Chemical Equivalency Table, U.S.S.G. § 2D1.11(d), should

have been used to calculate his offense base level.

     Chavez also argues that counsel failed to object to the amount

of drugs reasonably foreseeable to Chavez, "failed to do effective

research and pre-trial investigation to be prepared to present

an[y] mitigating evidence on behalf of appellant," and "failed to

put the prosecution's case to any meaningful adversarial testing."

Chavez asserts that counsel told him to tell the court that he had

seen the PSR when he had not.

     Chavez failed to establish that "extraordinary circumstances

are present" which would require relief under rule 60(b)(6).     See

American Totalisator Co. v. Fair Grounds Corp., 
3 F.3d 810
, 815

(5th Cir. 1993).   As Chavez has not shown that the denial of his
                          No. 95-40431
                               -3-

rule 60(b) motion was so unwarranted as to constitute an abuse of

discretion, the judgment is AFFIRMED.

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer