Perez v. Stephens, No. 13-70002 (5th Cir. 2014)
Annotate this CasePetitioner, sentenced to death for three murders, appealed the district court's denial of his 28 U.S.C. 2254 petition for habeas corpus relief. Allegedly without consulting petitioner, his counsel decided not to file a timely appeal. Upon motion, the district court then vacated and reentered its judgment under Rule 60(b)(6), allowing petitioner to file an appeal within thirty days of the reentered judgment. In Case No. 13-70006, the Director appealed from the district court's grant of petitioner's motion to vacate and reenter judgment. In Case No. 13-70002, petitioner appealed the reentered judgment, requesting a certificate of appealability (COA). The court concluded that petitioner was solely using a Rule 60(b) motion as a means of achieving an untimely appeal. Under Supreme Court precedent and the court's precedent, the district court lacked the power to circumvent the rules for timely appeals in the manner it did. The court vacated the order granting relief and reentered judgment. The March 2012 judgment is a "live" judgment as to which petitioner's appeal was, admittedly, untimely. Accordingly, the court granted the Director's motion to dismiss Case No. 13-70002 for want of jurisdiction. The court vacated Case No. 13-70006.
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