United States v. Allen

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10359 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRENT LEDEAN ALLEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC Nos. 2:97-CV-141 2:93-CR-29-3 -------------------- August 14, 2002

Before JOLLY, JONES and PARKER, Circuit Judges.

PER CURIAM:*

Brent Ledean Allen, federal prisoner number 25238-077, filed

a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence. The district court denied this motion on July 28,

2000. On March 2, 2001, Allen filed a motion for leave to file

an out-of-time notice of appeal and request for a certificate of

appealability (COA) asserting that he had not received notice of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10359 -2-

the July 28, 2000, final judgment until February 6, 2001. The

district court found that the motion was brought under FED.

R. APP. P. 4(a)(6), but was not filed within seven days of

receipt of notice of the entry of the July 28, 2000, judgment or

within 180 days of the entry of that judgment.

Allen has filed a motion for COA with this court. The

motion for COA is DENIED as unnecessary.

Allen did not file a notice of appeal from the district

court’s denial of his 28 U.S.C. § 2255 motion. Accordingly, this

court lacks jurisdiction to review the judgment denying that

motion. See Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983).

As Allen appealed only from the district court’s denial of his

postjudgment motion for leave to file an out-of-time notice of

appeal and an out-of-time request for a certificate of

appealability, we can review only the denial of that motion.

At the latest, Allen had to file his motion to reopen the

time for appeal within 180 days of the entry of the district

court’s July 28, 2000, order denying his 28 U.S.C. § 2255 motion.

FED. R. APP. P. 4(a)(6). That 180-day period expired on January

14, 2001. Accordingly, the district court did not abuse its

discretion in finding that the March 2, 2001, filing of Allen’s

motion was untimely. See United States v. Clark, 51 F.3d 42, 43

(5th Cir. 1995).

AFFIRMED.