United States v. Henry

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-31193 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFRED HENRY, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 93-CR-20001 - - - - - - - - - - July 17, 1997 Before REAVLEY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Alfred Henry, Jr., appeals the denial of his “Motion for

Correction of Sentence” following his guilty-plea conviction for

the use of a firearm in connection with a drug-trafficking crime

in violation of 18 U.S.C. § 924(c). Henry incorrectly based the

motion upon 18 U.S.C. § 3742, which does not authorize motion

practice. The proper vehicle for Henry’s challenge is 28 U.S.C.

§ 2255. See United States v. Santora, 711 F.2d 41, 42 (5th Cir.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-31193 - 2 -

1983). Because the motion is a § 2255 motion, Henry must secure

a certificate of appealability (COA) to

obtain appellate review. 28 U.S.C. § 2253. A ruling on a COA

should be made in the first instance by the district court, sua

sponte if no request is made. Muniz v. Johnson, ___ F.3d ___

(5th Cir. May 20, 1997, No. 96-50508), 1997 WL 265120, at *2; see

United States v. Orozco, 103 F.3d 389, 391 (5th Cir. 1996).

Henry made no such request in the district court, and there has

been no ruling by the district court. Accordingly, the case is

remanded to the district court for it to determine whether a COA

should issue and, if so, what issues warrant appealability. See

Muniz. Additionally, it is noted that the district court erred

by assessing the appellate filing fee pursuant to the Prison

Litigation Reform Act (PLRA); the PLRA does not apply to appeals

from the denial of § 2255 motions. United States v. Cole, 101

F.3d 1076, 1077 (5th Cir. 1996).

REMANDED.