United States v. Agustin Mendez-Vazquez

Opinion

Case: 18-11267 Date Filed: 07/10/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11267 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cr-20170-RNS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AGUSTIN MENDEZ-VAZQUEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 10, 2019)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-11267 Date Filed: 07/10/2019 Page: 2 of 4

Agustin Mendez-Vazquez, a federal prisoner proceeding pro se, appeals the

district court’s denial of his Rule 60(b) motion to reopen his case and grant him a

certificate of appealability. We dismiss his appeal for lack of jurisdiction.

Mendez-Vazquez pleaded guilty to one count of conspiring to provide and

obtain forced labor in violation of 18 U.S.C. § 1594(b). The district court

sentenced him to 72 months in prison in January 2017. He did not directly appeal

his conviction or sentence, but in a separate action he moved to vacate his sentence

under 28 U.S.C. § 2255 based on ineffective assistance of counsel. On June 1,

2017, the district court denied that motion and denied him a certificate of

appealability. A few months later Mendez-Vazquez sought permission from this

Court to file a second or successive § 2255 motion. We denied that motion in

November 2017.

On February 13, 2018, Mendez-Vazquez filed a pro se “Motion Under Fed.

R. Civil P. 60(b).” Although he filed that motion in his criminal case, it appears to

relate to the district court’s denial of his § 2255 motion. He stated that his “§2255

Motion was denied with prejudice and without the certificate of appe[a]lability,”

and he asked the court “to reopen the case and give [him a] certificate of

appe[a]lability to file a motion to appeal the decision of the District Court of

Miami, Southern District of Florida.” The district court denied the motion, and a

month later Mendez-Vazquez filed this appeal. In his notice of appeal, and in his

2 Case: 18-11267 Date Filed: 07/10/2019 Page: 3 of 4

brief before this Court, he argued that he received ineffective assistance of counsel

when he entered into a plea agreement. That was the same argument he made in

his § 2255 motion.

We are under an obligation to sua sponte examine our jurisdiction and to

review de novo any jurisdictional issues that come up. See United States v. Al-

Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). We construe Mendez-Vazquez’s

“Rule 60(b)” motion as a motion for the district court to grant him a COA to

appeal the denial of his § 2255 motion.1 We lack jurisdiction to hear an appeal of

the district court’s denial of that motion. See Pruitt v. United States, 274 F.3d

1315, 1319 (11th Cir. 2001) (“[A] district court’s denial of a certificate of

appealability is not reviewable by the circuit court.”). And we decline to construe

his notice of appeal as an application for a COA from this Court because any

appeal from his original § 2255 motion — which was denied by the district court

over two years ago — would be untimely. See Fed. R. App. P. 4(a)(1)(B); 11th

Cir. R. 22-1(b) (“[T]he court of appeals will construe a party’s filing of a timely

notice of appeal as an application to the court of appeals for a certificate of

appealability.”) (emphasis added).

1 We construe Mendez-Vazquez’s motion as a motion for a COA because we think that is what it really is, even though he called it something else. But even if we construed it as a Rule 60(b) motion for post-judgment relief, Mendez-Vazquez would fare no better: “Rule 60(b) simply does not provide for relief from judgment in a criminal case.” United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998). 3 Case: 18-11267 Date Filed: 07/10/2019 Page: 4 of 4

DISMISSED.