United States v. Matthews

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50179 No. 97-50214 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTUMUS CHARLES MATTHEWS,

Defendant-Appellant.

- - - - - - - - - - Appeals from the United States District Court for the Western District of Texas USDC No. W-93-CR-9-1 USDC No. W-96-CV-462 - - - - - - - - - - August 15, 1997 Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

PER CURIAM:*

Artumus Charles Matthews, federal prisoner #60704-080, seeks

to appeal from the grant of the Government’s motion to reduce his

sentence and from the denial of his own motion for relief under

28 U.S.C. § 2255. Matthews moves to strike the appellee’s brief;

his motion to strike is DENIED.

We must examine the basis of our jurisdiction on our own

motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-50179 No. 97-50214 -2-

Cir. 1987). A timely notice of appeal is a prerequisite for the

exercise of our jurisdiction. United States v. Carr, 979 F.2d

51, 55 (5th Cir. 1992). Matthews did not file a timely notice of

appeal following the order granting the Government’s motion for

reduction of sentence; accordingly, appeal no. 97-50179 is

DISMISSED for want of jurisdiction.

On April 24, 1996, the President signed the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), which applies to

the instant case because Matthews’s motion was filed in the

district court after April 24, 1996. See Green v. Johnson, 116

F.3d 1115 (5th Cir. 1997). The AEDPA amended 28 U.S.C. § 2253 to

require a certificate of appealability (COA) by a circuit justice

or judge before an appeal may be taken in a § 2255 proceeding.

§ 2253(c)(1). A COA may be issued only if the prisoner has made

a “substantial showing of the denial of a constitutional right.”

§ 2253(c)(2).

The district court must rule on a COA before Matthews may

request a COA from this court. See Muniz v. Johnson, 114 F.3d

43, 45 (5th Cir. 1997); United States v. Youngblood, 116 F.3d

1113 (5th Cir. 1997). Accordingly, Matthews’s § 2255 case,

appeal no. 97-50214, is REMANDED for the limited purpose of

allowing the district court to determine whether any of the

issues Matthews wishes to raise merit granting Matthews a COA.

Appeal no. 97-50179 DISMISSED.

Appeal no. 97-50214 LIMITED REMAND. No. 97-50179 No. 97-50214 -3-