United States v. Fitzgerald

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 1, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-51049
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BUCKY CHARLES FITZGERALD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:01-CR-549-2
--------------------
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Bucky Charles Fitzgerald, federal prisoner # 28083-180,
appeals from the district court’s judgment dismissing his
collateral challenge to his 2002 drug conviction. Fitzgerald had
moved in the district court for issuance of a nunc pro tunc order
to correct the sentence that he received under the federal
sentencing guidelines.
As federal courts are courts of limited jurisdiction,
Fitzgerald must have statutory authority for the filing of his

-- 1 of 2 --

No. 04-51049
-2-
motion. Veldhoen v. United States Coast Guard, 35 F.3d 222, 225
(5th Cir. 1998). Section 2255 of Title 28 is the means by which
a federal prisoner may challenge the validity of his sentence.
United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992). Thus,
Fitzgerald’s motion should have been construed as a motion
arising under 28 U.S.C. § 2255. Such a recharacterization of
Fitzgerald’s motion has important consequences of which
Fitzgerald should be apprised. See United States v. Castro, 540
U.S. 375, 383 (2003).
Because Fitzgerald’s motion was in the nature of a 28 U.S.C.
§ 2255 motion, this court lacks jurisdiction over Fitzgerald’s
appeal absent a certificate of appealability ruling in the
district court. Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.
1997); United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th
Cir. 1997). The judgment of the district court is VACATED and
this case is REMANDED for further proceedings.

-- 2 of 2 --