United States v. Alvarez

Opinion

No. 99-20848 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20848

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO ANTONIO ALVAREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC Nos. H-99-CV-1794 & H-94-CR-281-1 - - - - - - - - - - May 4, 2000

Before REAVLEY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Julio Antonio Alvarez, federal prisoner # 66514-079, moves

this court for a certificate of appealability (COA), following

the district court’s summary dismissal of his motion to vacate

his sentence brought pursuant to 28 U.S.C. § 2255. Because

Alvarez’s notice of appeal was untimely, however, the only issue

before the court is whether the district court abused its

discretion by denying Alvarez’s request to file a late notice of

appeal. See United States v. Clark, 51 F.3d 42, 43 n.5 (5th Cir.

1995)(setting forth the standard for review of excusable-neglect

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20848 -2-

finding). Even though Alvarez was specifically instructed to

brief this issue in his COA brief, he has failed to do so,

focusing instead solely on the merits of his collateral

challenges to his conviction. Because Alvarez has not briefed

the issue, it is deemed waived. See Hughes v. Johnson, 191 F.3d

607, 613 (5th Cir. 1999) (claims not briefed in COA application

are deemed waived), cert. denied, 120 S. Ct. 1003 (2000).

Alvarez fails to show that the district court erred by denying

his request to file a late notice of appeal, and the appeal

therefore is DISMISSED for lack of jurisdiction.

APPEAL DISMISSED.