United States v. Huynh

* 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that this opinion should not be published and is not precedent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. 00-31082
Conference Calendar
UNITED STATES OF AMERICA,,
Plaintiff-Appellee,
versus
THUAN HUU HUYNH,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 00-CV-514-B
USDC No. 98-CR-71-ALL-B
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Thuan Huu Huynh moves this court for a certificate of
appealability (COA) to appeal the district court’s dismissal of
his 28 U.S.C. § 2255 motion. The motion for COA is DENIED AS
MOOT because Huynh did not timely file a notice of appeal. The
district court did not abuse its discretion in determining that
Huynh’s untimely filing of his notice of appeal was not due to
excusable neglect. Halicki v. Louisiana Casino Cruises, Inc.,
151 F.3d 465, 468-69 (5th Cir. 1998), cert. denied, 526 U.S. 1005

-- 1 of 2 --

No. 00-31082
-2-
(1999); United States v. Clark, 51 F.3d 42, 44 (5th Cir. 1995).
Without a finding of excusable neglect, Huynh’s notice of appeal
filed on August 28, 2000, is untimely, and this court is without
jurisdiction over the appeal. FED. R. APP. P. 3(a)(1).
Accordingly, the appeal is DISMISSED.

-- 2 of 2 --