Francisco Mendoza Ordonez v. United States

Fifth Circuit

Francisco Mendoza Ordonez v. United States

588 F.2d 448, 1979 U.S. App. LEXIS 17350

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 24, 1979

Docket78-2541

StatusPublished

Cited by8 cases

This text of 588 F.2d 448 (Francisco Mendoza Ordonez v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Francisco Mendoza Ordonez v. United States, 588 F.2d 448, 1979 U.S. App. LEXIS 17350 (5th Cir. 1979).

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Opinion

PER CURIAM:

This is an appeal from the denial of motion to vacate judgment and sentence pursuant to the provisions of 28 U.S.C. § 2255.

We find no error in the district court’s denial of appellant’s allegation of trial court errors. As to his allegation of insufficiency of evidence to convict him, the issue was decided adversely to appellant on *449 direct appeal and need not be considered again.

However, appellant’s retained counsel failed to file a petition for certiorari after we affirmed his conviction on direct appeal, 525 F.2d 1406 (5 Cir. 1975), despite counsel’s acknowledgment that he failed to file the petition for certiorari in time and his promise that he would file a motion to file one out of time. 1 As was done in Lacaze v. United States, 457 F.2d 1075 (5 Cir. 1972), in which retained counsel likewise failed to file a petition for certiorari, and in Savage v. United States, 483 F.2d 67 (5 Cir. 1973), a case involving appointed counsel, we recall our mandate in appellant’s direct criminal appeal, cited above, and direct the issuance of a new mandate affirming our prior affirmance of the judgment of conviction. Appellant Ordonez is hereby advised of his renewed right to petition the Supreme Court for certiorari to review this court’s affirmance of his direct appeal. Since Ordonez has proceeded without counsel in this forma pauperis appeal, we also order appointment of counsel to assist him in prosecution of his petition for certiorari.

The original judgment of this court on direct appeal is vacated and a new judgment is entered reaffirming the judgment of conviction, and counsel for appellant is ordered to be appointed.

1

. Appellant has attached to his application to this court a Xerox copy from his counsel, Richard E. Haynes, Laredo, Texas, to this effect, in support of the allegation made in his § 2255 motion.

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PER CURIAM:

This is an appeal from the denial of motion to vacate judgment and sentence pursuant to the provisions of 28 U.S.C. § 2255.

We find no error in the district court’s denial of appellant’s allegation of trial court errors. As to his allegation of insufficiency of evidence to convict him, the issue was decided adversely to appellant on *449 direct appeal and need not be considered again.

However, appellant’s retained counsel failed to file a petition for certiorari after we affirmed his conviction on direct appeal, 525 F.2d 1406 (5 Cir. 1975), despite counsel’s acknowledgment that he failed to file the petition for certiorari in time and his promise that he would file a motion to file one out of time. 1 As was done in Lacaze v. United States, 457 F.2d 1075 (5 Cir. 1972), in which retained counsel likewise failed to file a petition for certiorari, and in Savage v. United States, 483 F.2d 67 (5 Cir. 1973), a case involving appointed counsel, we recall our mandate in appellant’s direct criminal appeal, cited above, and direct the issuance of a new mandate affirming our prior affirmance of the judgment of conviction. Appellant Ordonez is hereby advised of his renewed right to petition the Supreme Court for certiorari to review this court’s affirmance of his direct appeal. Since Ordonez has proceeded without counsel in this forma pauperis appeal, we also order appointment of counsel to assist him in prosecution of his petition for certiorari.

The original judgment of this court on direct appeal is vacated and a new judgment is entered reaffirming the judgment of conviction, and counsel for appellant is ordered to be appointed.

1

. Appellant has attached to his application to this court a Xerox copy from his counsel, Richard E. Haynes, Laredo, Texas, to this effect, in support of the allegation made in his § 2255 motion.

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Bluebook (online)

588 F.2d 448, 1979 U.S. App. LEXIS 17350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francisco-mendoza-ordonez-v-united-states-ca5-1979.

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