United States v. Pena

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-20067

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAIRO HERNAN PENA,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas

July 29, 1997

Before HIGGINBOTHAM, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:1

Jairo Hernan Pena, federal prisoner #46896-079, filed a motion

under 28 U.S.C. § 2255 challenging his conviction for aiding and

abetting the possession of cocaine with intent to distribute. The

district court denied the motion, Pena noticed his appeal and the

district court authorized Pena to proceed on appeal in forma

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. pauperis. He did not ask the district court for a certificate of

appealability nor did the district court sua sponte consider

whether one should issue. We construe the notice of appeal as an

application for a certificate of appealability. See Federal Rule

of Appellate Procedure 22(b). We have held that the initial

decision concerning certificates of appealability must be made by

the district court. United States v. Youngblood, (Docket Number

97-30319) 1997 WL 355356 (5th Cir. LA). Accordingly, we remand

this case to the district court for the limited purpose of

considering, in accordance with Federal Rule of Appellate Procedure

22(b) and § 2253(c)(3), whether a certificate of appealability

should issue.

REMANDED.