United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2004
Charles R. Fulbruge III
Clerk
No. 02-21214
c/w No. 03-20389
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH STAFFORD,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-96-CR-79-1
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Joseph Stafford, federal prisoner # 10454-042, appeals the
district court’s judgment resentencing him on one count of
conspiracy to commit wire fraud in violation of 18 U.S.C. § 371.
The Government has filed a motion to dismiss Stafford’s appeal
for lack of jurisdiction because: Stafford previously raised
these issues in his 28 U.S.C. § 2255 motion; the district court
and this court denied a certificate of appealability (COA); and
without a COA, this court lacks jurisdiction to consider these
*
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this opinion should not be published and is not precedent except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. 02-21214
c/w No. 03-20389
-2-
issues. In addition to the district court’s judgment on
resentencing, Stafford is appealing the district court’s denial
of two motions, one seeking an evidentiary hearing prior to
resentencing and one to recuse Judge Vanessa Gilmore on
resentencing. Stafford need not obtain a COA to appeal the
district court’s judgment on resentencing and the denial of these
motions related to resentencing. See 28 U.S.C. § 2253(c)(1)(B).
Therefore, the Government’s motion to dismiss the appeal for lack
of jurisdiction is DENIED.
Stafford argues that Judge Gilmore should have recused
herself because she failed to read the trial transcripts and
because she relied on a “confidential sentencing memorandum” in
resentencing him. Because Stafford has not shown any question
concerning Judge Gilmore’s impartiality or that she had any
personal, extrajudicial bias against Stafford, the district court
did not abuse its discretion in denying this motion. See United
States v. Mizell, 88 F.3d 288, 300 (5th Cir. 1996).
Stafford argues that the district court should have vacated
his entire sentence and resentenced him on the substantive counts
of conviction and that the district court should have held an
evidentiary hearing prior to resentencing. These issues are not
properly before the court. Stafford is essentially arguing that
he should have received more relief in the 28 U.S.C. § 2255
proceeding. However, his 28 U.S.C. § 2255 motion was denied and
both the district court and this court denied his COA motions.
No. 02-21214
c/w No. 03-20389
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Stafford’s appeal following resentencing is a separate criminal
proceeding, not part of his 28 U.S.C. § 2255 proceeding. See
United States v. Scott, 672 F.2d 454, 455 (5th Cir. 1982). The
only judgment which may be reviewed in this appeal is the
district court’s final judgment resentencing Stafford on one
conspiracy conviction. See 28 U.S.C. § 1291. Therefore,
Stafford may not raise these claims in this appeal of the
judgment entered on resentencing.
ALL PENDING MOTIONS DENIED; AFFIRMED.