United States v. Bell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Nos. 95-20663 c/w 96-20103 c/w 96-20486 No. 97-20058 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVIS ALLEN BELL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. 94-CR-295-1 c/w CR-H-94-295-1 USDC No. H-94-CR-295-1 - - - - - - - - - - June 26, 1997 Before KING, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

Alvis Allen Bell, federal prisoner No. 66602-079, moves this

court to consolidate his appeal from the denial of a motion which

the district court construed as seeking relief under 28 U.S.C.

§ 2255 with his appeals from the denial of a pretrial suppression

motion, the denial of a motion for new trial, and his direct

criminal appeal. Bell requests that the court accept his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Nos. 95-20663 c/w 96-20103 c/w 96-20486 No. 97-20058 - 2 -

appellate brief in its current form, and he moves the court to

stay the briefing schedule until additional documents are added

to the record.

Bell’s motion to consolidate his appeal from the denial of

§ 2255 relief, docketed in this court as No. 97-20058, with his

other pending appeals is DENIED. Bell’s collateral attack on his

conviction was not properly before the district. See United

States v. Fassler, 858 F.2d 1016, 1017-19 (5th Cir. 1988).

Therefore, appeal No. 97-20058 is REMANDED to the district court

for amendment of the judgment to reflect that Bell’s application

for § 2255 relief is dismissed without prejudice.

Bell’s motion to accept his appellate brief is GRANTED and

his motion to stay the briefing schedule is DENIED.

MOTION TO CONSOLIDATE DENIED; APPEAL NO. 97-20058 REMANDED

FOR AMENDMENT OF JUDGMENT; MOTION TO ACCEPT APPELLATE BRIEF

GRANTED; MOTION TO STAY BRIEFING DENIED.