United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 29, 2004
Charles R. Fulbruge III
Clerk
No. 03-21205
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILSON CALLE, also known as
Jose Ricardo Aguirre-Arias,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CR-194-6
--------------------
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Wilson Calle, federal prisoner # 66452-079, attempts to
appeal the district court’s ruling of December 28, 2000, denying
in part Calle’s 28 U.S.C. § 2255 motion and granting partial
relief in the form of a reduced supervised-release term. The
Government has moved to dismiss the appeal for lack of
jurisdiction because the notice of appeal, filed in December
2003, was untimely. Calle has responded, asserting that he
should be allowed to proceed on appeal because at the time of the
*
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this opinion should not be published and is not precedent except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. 03-21205
-2-
judgment, his appointed counsel mistakenly sought a certificate
of appealability rather than a direct appeal; that his petition
for permission to appeal should have been construed as a new 28
U.S.C. § 2255 motion challenging the effectiveness of counsel at
the resentencing; and that he is actually appealing the district
court’s denial of his motion to clarify the December 2000 ruling.
Because Calle’s notice of appeal is untimely as to the
December 2000 order, this court lacks jurisdiction over this
appeal. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994);
FED. R. APP. P. 4(a)(1)(B). Even if Calle could appeal the denial
of his motion to clarify, he did not do so because he specified
in his notice of appeal that he wished to challenge the December
2000 order. See FED. R. APP. P. 3(c)(1)(B). Consequently, the
APPEAL IS DISMISSED. Calle’s motions for appointment of counsel,
for leave to proceed in forma pauperis on appeal, for recusal of
the district court judge, and for remand to a different district
court judge are DENIED.
APPEAL DISMISSED; ADDITIONAL MOTIONS DENIED.