Filed: Aug. 24, 2016
Latest Update: Aug. 24, 2016
Summary: ORDER NELVA GONZALES RAMOS , District Judge . On June 7, 2016, the Clerk received Defendant/Movant Abel Lopez's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255. D.E. 207. Two months earlier, on April 4, 2016, Movant had appealed the Court's Amended Judgment (D.E. 165), and his appeal was pending before the Fifth Circuit at the time he filed his 2255 motion. Therefore, this Court dismissed Movant's 2255 motion as premature on June 10, 2016. D.E. 209, 210. D
Summary: ORDER NELVA GONZALES RAMOS , District Judge . On June 7, 2016, the Clerk received Defendant/Movant Abel Lopez's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255. D.E. 207. Two months earlier, on April 4, 2016, Movant had appealed the Court's Amended Judgment (D.E. 165), and his appeal was pending before the Fifth Circuit at the time he filed his 2255 motion. Therefore, this Court dismissed Movant's 2255 motion as premature on June 10, 2016. D.E. 209, 210. Di..
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ORDER
NELVA GONZALES RAMOS, District Judge.
On June 7, 2016, the Clerk received Defendant/Movant Abel Lopez's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 207. Two months earlier, on April 4, 2016, Movant had appealed the Court's Amended Judgment (D.E. 165), and his appeal was pending before the Fifth Circuit at the time he filed his § 2255 motion. Therefore, this Court dismissed Movant's § 2255 motion as premature on June 10, 2016. D.E. 209, 210. Dismissal was without prejudice to refiling once Movant's appeal was complete. Id.
On June 27, 2016, Movant appealed the Court's June 10, 2016 Order. D.E. 212. Then on August 15, 2016, Movant filed a Motion for Certificate of Appealability and/or Reconsideration of Order Dated June 10, 2016 (D.E. 215). Because the appeal of the June 10, 2016 Order is still pending, this Court is without authority to grant Movant's motion to reconsider. See Shepherd v. Int'l Paper Co., 372 F.3d 326, 329 (5th Cir. 2004) (citing Winchester v. United States Atty. for S.D. of Tex., 68 F.3d 947, 949 (5th Cir. 1995)) ("Once the notice of appeal has been filed, while the district court may consider or deny a Rule 60(b) motion (filed more than ten days after entry of the judgment), it no longer has jurisdiction to grant such a motion while the appeal is pending.") (emphasis in Shepard). The Court finds that jurists of reason would not find it debatable whether the Court was correct in its procedural ruling that Movant's § 2255 motion was premature based on his pending appeal. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).1 Accordingly, Movant's Motion for Certificate of Appealability and/or Reconsideration of Order Dated June 10, 2016 (D.E. 215) is DENIED.
However, the Fifth Circuit recently dismissed as frivolous Movant's April 4, 2016 appeal regarding the Amended Judgment. See United States v. Lopez, No. 16-40511 (5th Cir. Aug. 1, 2016). Movant's § 2255 motion (D.E. 207) is therefore reinstated, and the Clerk is instructed to reopen Case No. 2:16-CV-208.
The Court has reviewed Movant's § 2255 motion and concludes that summary dismissal pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts ("2255 Rules") is inappropriate. Accordingly, it is ORDERED that the United States answer the § 2255 motion not later than sixty days after the entry of this Order. It is further ORDERED that the United States file with the Clerk, at or before the time of its answer, transcripts of all pertinent proceedings that are not already part of the record. Relevant affidavits, if any, are also to be filed with the answer.
Pursuant to Rule 5(d) of the 2255 Rules, Movant may file a reply not later than thirty days after service of the Government's answer.
ORDERED.
