United States v. Martinez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50209 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

VERONICA MARTINEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CV-157 USDC No. W-88-CR-130-2 - - - - - - - - - - May 17, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Veronica Martinez appeals the district court’s dismissal of

her 28 U.S.C. § 2255 motion to vacate her sentence. Initially, the

district court dismissed Martinez’s § 2255 motion as successive.

After Martinez filed her notice of appeal from that dismissal, she

sought a certificate of appealability from the district court.

Apparently believing that it retained jurisdiction over the case

and that it had erred in earlier dismissing Martinez’s § 2255

motion, the district court denied the COA motion without prejudice

and vacated its earlier order dismissing Martinez’s § 2255 motion

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50209 -2-

as successive. (The court evidently construed Martinez’s COA

application as a motion for Fed. R. Civ. P. 60(b) relief.) In the

same order, the court directed the Government to file an answer to

Martinez’s § 2255 motion within 60 days. After considering the

arguments of both parties, and denying Martinez’s request to amend

her § 2255 motion, the court denied and dismissed Martinez’s § 2255

motion a second time.

Meanwhile, this court was considering Martinez’s motion to

dismiss her appeal. This court construed it as a motion to remand

the case to the district court for consideration of a Fed. R. Civ.

P. 60(b) motion, and granted it, albeit months after the district

court had purportedly granted such relief, and two days after the

district court’s second dismissal of Martinez’s § 2255 motion.

Martinez timely filed a notice of appeal from the second denial of

§ 2255 relief, and this court granted COA as to two issues, one of

which was whether the district court retained jurisdiction over the

case after Martinez filed her first notice of appeal on July 8,

1997, and whether the district court’s actions after that date were

void.

We now hold that the district court lacked jurisdiction to

grant a Rule 60(b) motion after Martinez filed her notice of appeal

on July 8, 1997. Creations Unlimited, Inc. v. McCain, 112 F.3d

814, 816-17 (5th Cir. 1997). Accordingly, all actions, orders, and

judgments by the district court since the filing of Martinez’s

first notice of appeal on July 8, 1997, are void. See Winchester

v. United States Atty. for Southern Dist. of Texas, 68 F.3d 947,

948-49 (5th Cir. 1995). This case is hereby REMANDED and the No. 98-50209 -3-

district court is instructed to either reenter its order striking

Martinez’s proposed amendment and its judgment dismissing

Martinez’s § 2255 motion, or again set up a briefing schedule to

reconsider the pleadings before it.

Martinez is advised that in order to appeal, she must file a

new notice of appeal from whatever action is taken by the district

court.

REMANDED WITH INSTRUCTIONS.