United States v. Martinez

* 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this opinion should not be published and is not precedent except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. 98-50209
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
VERONICA MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CV-157
USDC No. W-88-CR-130-2
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May 17, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Veronica Martinez appeals the district court’s dismissal of
her 28 U.S.C. § 2255 motion to vacate her sentence. Initially, the
district court dismissed Martinez’s § 2255 motion as successive.
After Martinez filed her notice of appeal from that dismissal, she
sought a certificate of appealability from the district court.
Apparently believing that it retained jurisdiction over the case
and that it had erred in earlier dismissing Martinez’s § 2255
motion, the district court denied the COA motion without prejudice
and vacated its earlier order dismissing Martinez’s § 2255 motion

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No. 98-50209
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as successive. (The court evidently construed Martinez’s COA
application as a motion for Fed. R. Civ. P. 60(b) relief.) In the
same order, the court directed the Government to file an answer to
Martinez’s § 2255 motion within 60 days. After considering the
arguments of both parties, and denying Martinez’s request to amend
her § 2255 motion, the court denied and dismissed Martinez’s § 2255
motion a second time.
Meanwhile, this court was considering Martinez’s motion to
dismiss her appeal. This court construed it as a motion to remand
the case to the district court for consideration of a Fed. R. Civ.
P. 60(b) motion, and granted it, albeit months after the district
court had purportedly granted such relief, and two days after the
district court’s second dismissal of Martinez’s § 2255 motion.
Martinez timely filed a notice of appeal from the second denial of
§ 2255 relief, and this court granted COA as to two issues, one of
which was whether the district court retained jurisdiction over the
case after Martinez filed her first notice of appeal on July 8,
1997, and whether the district court’s actions after that date were
void.
We now hold that the district court lacked jurisdiction to
grant a Rule 60(b) motion after Martinez filed her notice of appeal
on July 8, 1997. Creations Unlimited, Inc. v. McCain, 112 F.3d
814, 816-17 (5th Cir. 1997). Accordingly, all actions, orders, and
judgments by the district court since the filing of Martinez’s
first notice of appeal on July 8, 1997, are void. See Winchester
v. United States Atty. for Southern Dist. of Texas, 68 F.3d 947,
948-49 (5th Cir. 1995). This case is hereby REMANDED and the

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No. 98-50209
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district court is instructed to either reenter its order striking
Martinez’s proposed amendment and its judgment dismissing
Martinez’s § 2255 motion, or again set up a briefing schedule to
reconsider the pleadings before it.
Martinez is advised that in order to appeal, she must file a
new notice of appeal from whatever action is taken by the district
court.
REMANDED WITH INSTRUCTIONS.

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