Gamarra v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
DIEGO GAMARRA §
VS. § CIVIL ACTION NO. 9:21cv247
UNITED STATES OF AMERICA §
MEMORANDUM OPINION AND ORDER
Movant Diego Gamarra, an inmate confined at the Federal Correctional Institution located
in Seagoville, Texas, proceeding with retained counsel Franklyn Ray Mickelson, brought the above-
styled Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court
denied and dismissed the Motion to Vacate on September 11, 2024.
Pending before the Court are Movant’s Motion for Leave to File Out-of-time Appeal
[Dkt. 11], filed November 10, 2025, and Amended Motion to Enter Notice of Appeal Nunc Pro Tunc
or, in the Alternative, to Reopen the Appeal Period [Dkt. 13], filed November 26, 2025.
Movant claims he requested that his attorney file a notice of appeal “immediately following
the denial of his § 2255 petition” but counsel failed to do so. [Dkt. 11 at 1]. Movant also claims he
filed a pro se “original Notice of Appeal, dated and mailed shortly after judgment was entered.”
[Dkt. 11 at 2 and Exh. A]. Movant later clarifies that his alleged pro se Notice of Appeal was mailed
on September 24, 2024. [Dkt. 13 at 1 and 13-1 Exh. A].
Movant further asserts that he filed a Motion for Certificate of Appealability with the Court
of Appeals for the Fifth Circuit which was “denied solely because ‘no new case number’ had been
issued by the district court.” [Dkt. 11 at 2]. Movant argues he has been diligent in his efforts to
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perfect his appeal and “the loss of [his] appellate rights was due entirely to counsel’s failure and
administrative oversight, not to any fault or delay by the Defendant.” [Dkt. 11 at 2].
Analysis
In cases where the United States is a party, such as this action, Rule 4(a)(1)(B), FED. R. APP.
P., requires that the notice of appeal in a civil action be filed within 60 days of entry of the judgment
or order from which appeal is taken. Pursuant to FED. R. APP. P. 4(a)(5)(A), however, the district
court may extend the time to file a notice of appeal if (i) a party so moves no later than 30 days after
the time prescribed by Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or
during the 30 days after the time prescribed by Rule 4(a), that party shows excusable neglect or good
cause.
Here, Movant’s earliest document filed in the district court after entry of the Final Judgment
was his “Request for Clarification Regarding Pending Certificate of Appealability” filed on February
12, 2025, more than five months after entry of the final judgment. [Dkt. 10]. Notably, in that
document, Movant claimed he “directed his attorney to file the motion for appeal, which was
submitted accordingly.” [Dkt. 10]. This statement directly contradicts Movant’s later assertion that
he filed a pro se Notice of Appeal on September 24, 2024. [Dkt. 13 at 1 and 13-1 Exh. A].
Movant’s argument of alleged attorney abandonment also fails to warrant relief because
Movant was aware of the alleged abandonment on or before September 24, 2024 when he claims to
have prepared and mailed a Notice of Appeal. Since September 24, 2024 was within the sixty day
window to appeal the September 11, 2024 judgment, Movant has failed to show any prejudice
related to counsel concerning this claim.
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Next, on November 10, 2025, Movant filed his Motion for Leave to File Out-of-Time Notice
of Appeal (Request to Reopen Appeal Period - Not a COA Request)” [Dkt. 11] and Notice of Appeal
[Dkt. 12]. In his motion, Movant requested an out-of-time appeal pursuant to Rule 4(a)(6). It is
noted that the purported Notice of Appeal, allegedly dated September 24, 2024, [Dkt. 12] appears
to be a copy of the Notice filed as Exhibit A attached to his motion [Dkt. 11].
Under Rule 4(a)(6), a district court may reopen the time to file an appeal for a period of 14
days after the date when its order to reopen is entered, but only in certain circumstances not present
in this case. Here, Rule 4(a)(6) is inapplicable because Movant received the final judgment in a
timely manner and his motion was not made within 180 days after the judgment was entered. See
FED. R. APP. P. 4(a)(6). Further, to the extent Movant’s motions are liberally interpreted as motions
for extension of time under Rule 4(a)(5), the motions are untimely. Accordingly, the motions should
be denied.
Movant also argues that he filed a notice of appeal on September 24, 2024. (Dkt. 11 Exh. A
and 13-1 Exh. A]. However, there is no evidence such as a post-mark or certified mail receipt
showing that the document was, in fact, mailed by Movant or received by any Court. Further,
Movant’s Certificate of Service does not substantially comport with the statute governing unsworn
declarations under penalty of perjury and does not satisfy the requirements of the prison mailbox
rule, under which a pro se prisoner’s pleading is considered filed when the document was placed in
the prison mailing system. See Liao v. Bondi, 162 F.4th 591, 526 (5th Cir. 2025); see also Spotville
v. Cain, 149 F.3d 374, 376 (5th Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988) and Cooper
v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1998)).
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Next, Movant again argues for relief under Rule 4(a)(6) in his Motion to Reopen the Appeal
Period. [Dkt. 13]. This argument, however, also lacks merit for the same reasons set forth above.
As previously set forth, under Rule 4(a)(6) a district court may reopen the time to file an appeal for
a period of 14 days after the date when its order to reopen is entered, but only in certain
circumstances not present in this case. Here, Rule 4(a)(6) is inapplicable because Movant received
the final judgment in a timely manner and his motion was not made within 180 days after the
judgment was entered. See FED. R. APP. P. 4(a)(6). Therefore, the motion should be denied.
Movant further asserts that he filed a Motion for Certificate of Appealability which was
“denied solely because ‘no new case number’ had been issued by the district court.” [Dkt. 11 at 2].
The purported document is allegedly marked with a “Received” stamp by the Fifth Circuit Court of
Appeals, dated October 15, 2024. [Dkt. 11 at 2 and Exh. B]. However, there is no evidence on the
Fifth Circuit website that this motion was ever received or filed by the Fifth Circuit. A review of
the Fifth Circuit website reveals only two cases filed by Movant, Appeal Nos. 18-40855 and 25-
40745. See http://coa.circ5.dcn/Viewcase.aspx. Moreover, there is no evidence indicating why the
document was not “filed,” nor is there any record that the document was forwarded to the district
court. As with Movant’s above documents, Movant’s Certificate of Service does not substantially
comport with the statute governing unsworn declarations under penalty of perjury and does not
satisfy the requirements of the prison mailbox rule, under which a pro se prisoner’s pleading is
considered filed when the document was placed in the prison mailing system. Finally, Movant has
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failed to state any meritorious ground for relief under Rule 60(b). Accordingly, Movant’s motions
should be denied. It is
ORDERED that Movant’s motions [Dkt. 11 and 13] are DENIED.
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____________________________
Michael J. Truncale
United States District Judge
SIGNED this 10th day of February, 2026.
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