United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30402
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONZO MASON,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:00-CR-30019-1
______________________
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Alfonzo Mason, federal prisoner # 10614-035, was indicted
for possession with intent to distribute cocaine base,
distribution of cocaine base, and conspiracy. After his initial
conviction was vacated and remanded, and the case dismissed
without prejudice on a Speedy Trial Act violation, Mason plead
guilty after being re-indicted and was sentenced on March 24,
*
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this opinion should not be published and is not precedent except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.
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2003, to 151 month’s imprisonment. He then proceeded to file a
habeas corpus application under 28 U.S.C. § 2255 which was denied
by the district court on March 19, 2004.1 On March 29, 2004,
Mason filed a motion to dismiss the indictment which was denied
by the district court. The present appeal ensued.
In his motion, Mason challenged the indictment that was
returned by the grand jury in the initial proceeding that was
dismissed on a Speedy Trial Act violation. Because that criminal
proceeding was no longer pending at the time Mason’s motion was
filed, his motion was unauthorized and without a jurisdictional
basis.2 In effect, Mason “appealed from the denial of a
meaningless, unauthorized motion.”3
Even if Mason’s motion had challenged the indictment in his
second conviction, we would lack jurisdiction over this appeal.
Mason failed to appeal his second conviction, opting instead to
file a habeas application. Mason’s motion filed after the denial
of his habeas application would properly be treated as a
successive habeas application under 28 U.S.C. § 2255, requiring
certification by this court prior to filing.4 Mason obtained no
1
This court subsequently denied Mason’s certificate of
appealability on August 17, 2004.
2
See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994).
3
Id.
4
See United States v. Rich, 141 F.3d 550, 553 (5th Cir.
1998)(treating a motion filed subsequent to a habeas proceeding as
a successive habeas petition under § 2255).
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such certification; therefore the district court would have been
required to dismiss Mason’s motion for lack of jurisdiction.5
Accordingly, the district court’s judgment is AFFIRMED.
Mason’s motion for the appointment of appellate counsel is DENIED
as moot.
5
See 28 U.S.C. § 2244(b)(3)(A).
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