USA v. Berry, No. 06-41696 (5th Cir. 2008)
Annotate this Case
Download PDF
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 06-41696 Summary Calendar January 24, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ANTONIO BERRY, also known as Tony Berry Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:96-CV-722 USDC No. 1:92-CR-93-1 Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges. PER CURIAM:* Antonio Berry, federal prisoner # 03256-043, was convicted in 1993 of conspiracy to distribute cocaine. Berry filed the instant Motion for Relief pursuant to FED. R. CIV. P. 60(b)(4) & (6), challenging the district court s order denying his initial motion under 28 U.S.C. § 2255. Berry has applied to this court for a certificate of appealability (COA) from the district court s order denying the Rule 60(b) motion. See 28 U.S.C. § 2253(c)(1)(B). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41696 Berry complained below that his attorney rendered ineffective assistance in advising him about the extent of his exposure at sentencing; that the district court erred at sentencing in adjusting his offense level because of his leadership role and because he obstructed justice; and that the application to him of amended versions of the Guidelines Manual violated the Ex Post Facto Clause. Berry contended that the district court s order denying the § 2255 motion was void because the district court failed to dispose of these issues in that order. Because the substantive issues raised in the Rule 60(b) motion challenge the judgment of conviction and sentence, we regard the motion as a § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 530 32 & n. 4 (2005). Berry has not obtained leave of this court to file a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3)(A); § 2255. Because § 2244(b)(3)(A) acts as a jurisdictional bar to the district court s asserting jurisdiction over any successive habeas petition until this court has granted the petitioner permission to file one, the district court was without jurisdiction to consider the action. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Accordingly, the appeal does not deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The request for a COA is DENIED. Berry has failed to heed our warning in United States v. Berry, No. 0240286 (5th Cir. Sept. 30, 2002) (unpublished), that frivolous filings will result in the imposition of a sanction. Berry shall pay a monetary SANCTION to the clerk of this court in the amount of $100. The clerk of this court and the clerks of all federal district courts within this circuit are directed to refuse to file any pro se pleading from Berry challenging his conviction or sentence unless Berry submits proof of satisfaction of this sanction. If Berry attempts to file in this court any such pleadings, the clerk will docket them for administrative purposes only. Any submissions which do not show proof that the sanction has been paid will neither be addressed nor acknowledged. COA DENIED; SANCTION IMPOSED. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
