United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-41485
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ANTHONY FANTOZZI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. C-03-CV-223
and C-01-CR-135-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Charles Anthony Fantozzi, federal prisoner # 45227-083,
requests a certificate of appealability (COA) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion as time-
barred. He argues that the district court erred in using the date
of the finality of his conviction as the starting date for the one-
year time limit for filing his 28 U.S.C. § 2255 motion, rather than
the later date on which he discovered that his trial counsel had
*
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that this opinion should not be published and is not precedent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.
failed to perfect his appeal. He seeks a COA to present his claim
that he received ineffective assistance of counsel because his
trial counsel failed to perfect his direct appeal, among other
claims.
However, the record shows that on March 15, 2002, Fantozzi
filed a motion to proceed in forma pauperis (IFP) on appeal
following the entry of the judgment of conviction and within the
10-day time limit for filing a notice of appeal, which clearly
evinced his intent to file a direct appeal. See Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987). Consequently, Fantozzi’s motion
to proceed IFP should be construed as a timely notice of direct
appeal from the judgment of conviction, and we will not consider
the arguments raised in Fantozzi’s COA application because “[a]
motion to vacate sentence under 28 U.S.C. § 2255 will not be
entertained during the pendency of a direct appeal, inasmuch as the
disposition of the appeal may render the motion moot.” Welsh v.
United States, 404 F.2d 333, 333 (5th Cir. 1968), abrogated on
other grounds, United States v. Ortega, 859 F.2d 327, 334 (5th Cir.
1988).
Accordingly, we grant COA and vacate the district court’s
order denying 28 U.S.C. § 2255 relief and judgment entered on
September 24, 2003, and its order denying Fantozzi’s motion for
reconsideration entered on October 31, 2003. On remand, the
district court is instructed to (1) dismiss Fantozzi’s 28 U.S.C.
§ 2255 motion without prejudice; (2) construe Fantozzi’s motion for
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leave to proceed IFP on appeal filed on March 15, 2002, as a timely
notice of direct appeal of its judgment entered on March 14, 2002;
and (3) direct its clerk to file Fantozzi’s motion for leave to
proceed IFP on appeal filed on March 15, 2002, as a notice of
direct appeal from the district court’s judgment entered on
March 14, 2002.
APPLICATION FOR COA GRANTED; VACATED AND REMANDED.
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