Filed: Oct. 01, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-10395 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIO HERNANDEZ, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas (97-CV-955-R) (92-CR-381-3-R) - September 29, 1999 Before POLITZ, WIENER, and DeMOSS, Circuit Judges. PER CURIAM:* Defendant-Appellant federal prisoner Mario Hernandez was granted a certificate of appealability (COA) solely with respect
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-10395 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIO HERNANDEZ, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas (97-CV-955-R) (92-CR-381-3-R) - September 29, 1999 Before POLITZ, WIENER, and DeMOSS, Circuit Judges. PER CURIAM:* Defendant-Appellant federal prisoner Mario Hernandez was granted a certificate of appealability (COA) solely with respect t..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10395
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(97-CV-955-R)
(92-CR-381-3-R)
--------------------
September 29, 1999
Before POLITZ, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant federal prisoner Mario Hernandez was
granted a certificate of appealability (COA) solely with respect to
his claim that the delay in the execution of his sentence violated
his due process rights. Because the challenge to the execution of
Hernandez’s sentence — the delay/due process issue — is not
cognizable in a 28 U.S.C. § 2255 motion and is more properly
considered under 28 U.S.C.§ 2241, a COA is not required. See
*
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that this opinion should not be published and is not precedent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.
United States v. Gabor,
905 F.2d 76, 77 (5th Cir. 1990); see also
Ojo v. INS,
106 F.3d 680, 681 (5th Cir. 1997).
The government’s argument that the issue was not properly
raised in the district court is frivolous. Not only did it not
make that argument in the district court, the government ignored
the magistrate judge’s statement in her report filed May 27, 1997,
that the delay-in-surrendering-for-sentence issue “mandates a
response from the government.”
On the merits, Hernandez has failed to show that the
government’s delay was “so affirmatively wrong or its inaction so
grossly negligent that it would be unequivocally inconsistent with
‘fundamental principles of liberty and justice’ to require a legal
sentence to be served in the aftermath of such action or inaction.”
Piper v. Estelle,
485 F.2d 245, 246 (5th Cir. 1973); Shields v.
Beto,
370 F.2d 1003, 1006 (5th Cir. 1967). The judgment of the
district court, construed as the denial of a petition under 28
U.S.C. § 2241, is
AFFIRMED.
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