USA v. Agustin Mendez-Vazquez, No. 18-11267 (11th Cir. 2019)
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Case: 18-11267 Date Filed: 07/10/2019 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-11267 Non-Argument Calendar ________________________ D.C. Docket No. 1:16-cr-20170-RNS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus AGUSTIN MENDEZ-VAZQUEZ, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (July 10, 2019) Before ED CARNES, Chief Judge, WILLIAM PRYOR, and GRANT, Circuit Judges. PER CURIAM: Case: 18-11267 Date Filed: 07/10/2019 Page: 2 of 4 Agustin Mendez-Vazquez, a federal prisoner proceeding pro se, appeals the district court’s denial of his Rule 60(b) motion to reopen his case and grant him a certificate of appealability. We dismiss his appeal for lack of jurisdiction. Mendez-Vazquez pleaded guilty to one count of conspiring to provide and obtain forced labor in violation of 18 U.S.C. § 1594(b). The district court sentenced him to 72 months in prison in January 2017. He did not directly appeal his conviction or sentence, but in a separate action he moved to vacate his sentence under 28 U.S.C. § 2255 based on ineffective assistance of counsel. On June 1, 2017, the district court denied that motion and denied him a certificate of appealability. A few months later Mendez-Vazquez sought permission from this Court to file a second or successive § 2255 motion. We denied that motion in November 2017. On February 13, 2018, Mendez-Vazquez filed a pro se “Motion Under Fed. R. Civil P. 60(b).” Although he filed that motion in his criminal case, it appears to relate to the district court’s denial of his § 2255 motion. He stated that his “§2255 Motion was denied with prejudice and without the certificate of appe[a]lability,” and he asked the court “to reopen the case and give [him a] certificate of appe[a]lability to file a motion to appeal the decision of the District Court of Miami, Southern District of Florida.” The district court denied the motion, and a month later Mendez-Vazquez filed this appeal. In his notice of appeal, and in his 2 Case: 18-11267 Date Filed: 07/10/2019 Page: 3 of 4 brief before this Court, he argued that he received ineffective assistance of counsel when he entered into a plea agreement. That was the same argument he made in his § 2255 motion. We are under an obligation to sua sponte examine our jurisdiction and to review de novo any jurisdictional issues that come up. See United States v. AlArian, 514 F.3d 1184, 1189 (11th Cir. 2008). We construe Mendez-Vazquez’s “Rule 60(b)” motion as a motion for the district court to grant him a COA to appeal the denial of his § 2255 motion.1 We lack jurisdiction to hear an appeal of the district court’s denial of that motion. See Pruitt v. United States, 274 F.3d 1315, 1319 (11th Cir. 2001) (“[A] district court’s denial of a certificate of appealability is not reviewable by the circuit court.”). And we decline to construe his notice of appeal as an application for a COA from this Court because any appeal from his original § 2255 motion — which was denied by the district court over two years ago — would be untimely. See Fed. R. App. P. 4(a)(1)(B); 11th Cir. R. 22-1(b) (“[T]he court of appeals will construe a party’s filing of a timely notice of appeal as an application to the court of appeals for a certificate of appealability.”) (emphasis added). 1 We construe Mendez-Vazquez’s motion as a motion for a COA because we think that is what it really is, even though he called it something else. But even if we construed it as a Rule 60(b) motion for post-judgment relief, Mendez-Vazquez would fare no better: “Rule 60(b) simply does not provide for relief from judgment in a criminal case.” United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998). 3 Case: 18-11267 Date Filed: 07/10/2019 DISMISSED. 4 Page: 4 of 4
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