United States v. Miller

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 1998
• Docket: 97-10897
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 97-10897 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VERNON ANTHONY MILLER,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (No. 3:94-CR-343-1-G) _________________________________________________________________

April 16, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

At issue is whether an order denying an extension of time to

file a 28 U.S.C. § 2255 motion is appealable. Vernon Anthony

Miller, a federal prisoner, was convicted of conspiracy to commit

bank robbery, bank robbery and aiding and abetting, using and

carrying a firearm during a crime of violence and aiding and

abetting, and interstate transport of a stolen vehicle and aiding

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and abetting. The convictions were affirmed on direct appeal and

the Supreme Court denied certiorari on 7 October 1996.

On 25 July 1997, Miller moved in district court for an

extension of time to file a § 2255 motion. He contended that he

had been stabbed and placed in solitary confinement since 24 April

1997, and that the prison law library was inadequate to prepare the

§ 2255 motion.

On 30 July 1997, the district court denied the extension,

holding that any alleged impediment to Miller filing his § 2255

motion within the one-year limitation period would be litigated

when Miller actually filed the § 2255 motion; if Miller prevailed

on such an allegation, then the limitations period would run from

the date the impediment was removed. See 28 U.S.C. § 2255 (as

amended) (a § 2255 motion must be filed within one year from the

latest of, inter alia, the date the conviction becomes final, or

“the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the

United States is removed, if the movant is prevented from making a

motion by such government action”). But, instead of filing a §

2255 motion, Miller filed a timely notice of appeal from the denial

of his extension motion.

For purposes of this appeal, we have jurisdiction only from

(1) final orders (28 U.S.C. § 1291); (2) orders that can be

properly certified as final (Fed. R. Civ. P. 54(b), 28 U.S.C. §

2 1292(b)); and (3) specific interlocutory appeals (28 U.S.C. §

1292(a)(1)). See Dardar v. Lafourche Realty Co., Inc., 849 F.2d

955, 957 (5th Cir. 1988). A “final decision” under § 1291

“generally is one which ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment”.

Frizzell v. Sullivan, 937 F.2d 254, 255 (5th Cir. 1991) (quotation

omitted). Needless to say, the collateral order doctrine, or some

other exception, does not apply. See Moses H. Cone Memorial Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983) (“To come within

the ‘small class’ of decisions excepted from the final-judgment

rule by [Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541

(1949)], the order must conclusively determine the disputed

question, resolve an important issue completely separate from the

merits of the action, and be effectively unreviewable from a final

judgment.”).

The district court did not issue a final judgment, nor did it

certify the order as final or eligible for interlocutory appeal.

In fact, at the time of the district court’s order, Miller still

had several months in which to file his § 2255 motion. He did not

do so, and still has not filed any § 2255 motion. Accordingly,

this appeal is DISMISSED for lack of jurisdiction.

DISMISSED