UNITED STATES v. LOPEZ (2019)

Arnoldo Lopez, federal prisoner # 05282-380, was convicted of possessing with the intent to distribute a controlled substance and possessing a firearm in furtherance of a drug trafficking crime. He subsequently filed a 28 U.S.C. § 2255 motion. While that motion was pending, Lopez filed a notice of appeal and requested leave to proceed in forma pauperis (IFP) on appeal. Citing the lack of an appealable judgment, the district court denied Lopez leave to proceed IFP and certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. It later denied Lopez's § 2255 motion.

Before the court is Lopez's motion for leave to proceed IFP on appeal challenging the district court's certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Lopez has not addressed the district court's reasons for certifying that any appeal would not be taken in good faith. However, “[t]his Court must examine the basis of its jurisdiction, on its own motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).

Lopez's notice of appeal was timely only as to the district court's order granting the government an extension of time to respond to Lopez's § 2255 motion. See Fed. R. App. P. 4(a)(1)(B). However, Lopez's notice of appeal does not reference that order, and nothing indicates that Lopez intended to appeal the ruling. See Fed. R. App. P. 3(c) (providing that a notice of appeal must designate the judgment or order being appealed).

Lopez stated in his notice of appeal that he intended to appeal the district court's denial of his § 2255 motion. However, his notice of appeal was premature as to district court's final judgment denying Lopez's § 2255 relief. It does not confer appellate jurisdiction over that decision. See FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276-77, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991).

Lopez's motion for leave to proceed IFP on appeal is DENIED. His appeal is DISMISSED for lack of jurisdiction.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.