United States v. Kelly

336 F. App'x 423

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 23, 2009
• Docket: 08-30842
• Status: Unpublished

Opinion

PER CURIAM: *

Glenn Wayne Kelly, federal prisoner # 10984-035, appeals from the district court’s order denying his motion for clarification or correction of sentence. In his motion, Kelly challenged the 105-month sentence that he received following his 2001 conviction of possession of a firearm by a convicted felon. Kelly’s district court motion was an attempt by Kelly to collaterally attack his sentence by raising errors that occurred at or prior to sentencing. As such, the motion should have been construed by the district court as a 28 U.S.C. § 2255 motion. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir.2005); United States v. Santora, 711 F.2d 41, 42 and n. 1 (5th Cir.1983). Such a recharac-terization of Kelly’s motion has important consequences of which Kelly should be apprised. See Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Also, because Kelly’s motion was in the nature of a § 2255 motion, this court lacks jurisdiction over Kelly’s appeal absent a certificate of appealability ruling in the district court. See Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.1997); United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th Cir.1997).

The judgment of the district court is VACATED and this case is REMANDED for further proceedings.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.