United States v. Hollins

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 9, 2004
• Docket: 02-21040
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-21040 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD TYRONE HOLLINS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-3083 USDC No. H-00-CR-242-1 -------------------- February 19, 2003 Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Reginald Tyrone Hollins, # 88295-079, requests a certificate

of appealability (“COA”) to appeal the district court’s denial of

his 28 U.S.C. § 2255 motion. Hollins was convicted on his guilty

pleas to charges of being a felon in possession of a firearm and

carjacking and was sentenced to concurrent terms of 188 months’

imprisonment and three years’ supervised release.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. We examine the basis of our jurisdiction on our own motion.

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). The time limit

for a notice of appeal is a mandatory precondition to the exercise

of appellate jurisdiction, and the lack of a timely notice mandates

dismissal of the appeal. United States v. Garcia-Machado, 845 F.2d

492, 493 (5th Cir. 1988). Hollins had sixty days from the June 18,

2002, entry of the district court’s order, that is, until Monday,

August 19, 2002, to file a timely notice of appeal. FED. R. APP. P.

4(a)(1)(B); United States v. De Los Reyes, 842 F.2d 755, 757 (5th

Cir. 1988). Hollins’ notice of appeal, dated September 5, 2002,

was untimely.

Rule 4(a)(5), FED. R. APP. P., allows the district court to

grant an additional thirty days in which to file a notice of appeal

upon a showing of excusable neglect or good cause. Hollins’ notice

of appeal, which was filed within this 30-day period sufficed as a

motion for a finding on excusable neglect or good cause. United

States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000); United States

v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).

Accordingly, the COA motion is held in abeyance and the case

is REMANDED to the district court for a finding under FED. R. APP. P.

4(a)(5). Golding, 739 F.2d at 184. Upon making the finding, the

district court shall promptly return the case to this court for

dismissal or further proceedings, as may be appropriate.

REMANDED.