IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10901
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONNIE JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:95-CV-3039-R
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June 10, 1998
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ronnie Johnson, federal prisoner #23091-077, moves for
recall of the mandate following the denial of his constructive
motion for a certificate of appealability (“COA”) to appeal from
the denial of his motion for relief under 28 U.S.C. § 2255.
Johnson correctly contends that the COA requirement of the
Antiterrorism and Effective Death Penalty Act (AEDPA) should not
have been applied to his case. See Lindh v. Murphy, 117 S. Ct.
2059 (1997). We construe Johnson’s motion as seeking panel
review of a single-judge action pursuant to Fed. R. App. P.
*
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this opinion should not be published and is not precedent except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.
No. 96-10901
-2-
27(c). Johnson’s motion for panel review is GRANTED, and the
order denying Johnson a COA is RESCINDED.
No further briefing is necessary for the resolution of
Johnson’s § 2255 appeal, and we proceed to consider its merits.
See Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).
Johnson contends that his criminal prosecution was barred under
the doctrines of res judicata and double jeopardy. These issues
are foreclosed by the Supreme Court’s opinion in United States v.
Ursery, 116 S. Ct. 2135, 2149 (1996).
We conclude that Johnson’s appeal is without arguable merit
and is frivolous. It is therefore dismissed. Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983).
MOTION FOR PANEL REVIEW GRANTED; ORDER DENYING COA
RESCINDED; APPEAL DISMISSED. 5th Cir. R. 42.2.