United States v. Rios-Perez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 10, 2003

Charles R. Fulbruge III Clerk No. 02-20750 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAZARO RIOS-PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC Nos. H-01-CA-3764 H-99-CR-663-1 --------------------

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

PER CURIAM:*

Lazaro Rios-Perez, federal prisoner #87752-079, appeals the

denial of his FED. R. CIV. P. 60(b) motion seeking to have the

judgment dismissing his 28 U.S.C. § 2255 motion vacated. A COA

is not required for Rios’ appeal because his FED. R. CIV. P. 60(b)

motion does not challenge his conviction and essentially seeks to

manipulate the jurisdiction of the courts so he can file another

28 U.S.C. § 2255 motion without it being considered successive.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20750 -2-

See Dunn v. Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002),

cert. denied, ____ S. Ct. ____, No. 02-7404, 2003 WL 261938 (U.S.

Feb. 6, 2003).

Rios filed a 28 U.S.C. § 2255 motion, challenging the

validity of his conviction for illegally reentering the United

States following deportation. His 28 U.S.C. § 2255 motion was

accompanied by a “Motion for Appointment of Counsel to File a

Motion § 2255 to Correct Federal Sentence.”

Rios argues, as he did in his FED. R. CIV. P. 60(b) motion,

that he sought the help of another inmate in filing his motion

for appointment of counsel, that he did not intend to seek relief

under 28 U.S.C. § 2255, and that the district court therefore

erred in effectively recharacterizing his motion for appointment

of counsel as a 28 U.S.C. § 2255 motion. He also argues that the

district court abused its discretion in denying his FED. R. CIV.

P. 60(b) motion.

The denial of FED. R. CIV. P. 60(b) relief by the district

court will be set aside on appeal only for abuse of discretion.

See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998).

Although Rios asserts that he did not intend to file a 28 U.S.C.

§ 2255 motion, he did in fact file such a motion, and the

district court ruled on the 28 U.S.C. § 2255 motion that he

filed. Accordingly, Rios has not shown that the district court

abused its discretion in denying his FED. R. CIV. P. 60(b) motion. No. 02-20750 -3-

The district court’s denial of Rios’ FED. R. CIV. P. 60(b)

motion is AFFIRMED. Rios’ request for a COA is DENIED as

unnecessary.