United States v. Arzola-Amaya

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50241
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUDELIO ARZOLA-AMAYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC Nos. EP-87-CR-162-ALL-H
EP-95-CV-473-H
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January 3, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Audelio Arzola-Amaya, federal prisoner # 38898-080, appeals
from the denial of his FED. R. CIV. P. 60(b) and 59(e) motions
following the denial of his motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. Arzola-
Amaya’s request to file a reply brief out of time is granted.
Arzola-Amaya’s notice of appeal is construed as a request for a
certificate of appealability (COA) pursuant to FED. R. APP.
P. 22(b). See Slack v. McDaniel, 120 S. Ct. 1595, 1600 (2000).

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No. 00-50241
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Before a movant may request a COA from this court, the district
court must first determine whether a COA should issue. Muniz v.
Johnson, 114 F. 3d 43, 45 (5th Cir. 1997). No such ruling has
been made by the district court in this case. Accordingly, the
case is REMANDED to the district court for it to determine
whether a COA should issue.

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