[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 2, 2006
No. 05-16532 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00589-CR-JAL
JOSE ANGEL PEREZ,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 2, 2006)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
On February 12, 1997, appellant plead guilty to four counts of a superceding
indictment: Counts I and IV, bank robbery, 18 U.S.C. § 2113(a) and (d), and
Counts II and V, use of a firearm during and in relation to a crime of violence, 18
U.S.C. § 924(c). On May 8, 1997, the district court sentenced appellant to prison
for a total of 340 months.
Appellant thereafter filed numerous motions to vacate his sentence under 28
U.S.C. § 2255, as well as motions under 18 U.S.C. § 3582 to modify his sentences.
He filed one such motion pursuant to 18 U.S.C. § 3582(c)(1)(B) and 28 U.S.C.
§§ 2241, 2243, which the district court construed as a § 2255 motion to vacate and
denied as impermissibly successive (“Order 163”). Appellant also filed two
identical motions pursuant to 18 U.S.C. § 3582(c)(2), which the district court
denied in an omnibus order. He then filed the motion now before us under Federal
Rule of Civil Procedure 60(b). Although the motion is unclear as to which of the
district court’s many orders it challenged, the court docketed it as a motion for
relief from the omnibus order denying his § 3582(c)(2) motions. It has become
clear on appeal, however, that appellant intended that his Rule 60(b) motion
challenge only Order 163, which denied his § 3582(c)(1)(B) motion as a
successive, untimely § 2255 motion.
Thus, although not raised by the parties, we first determine whether
appellant must obtain a certificate of appealability (“COA”) before he can appeal
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the denial of his Rule 60(b) motion for relief from judgment of Order 163 denying
him § 2255 relief. See Pagan v. United States, 353 F.3d 1343, 1344-45 (11th Cir.
2003); see also Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir. 2006) (holding
that while every Rule 60(b) motion is not necessarily a successive § 2255 motion,
“[i]t is still the law of this circuit that “a [COA] is required for the appeal of any
denial of a Rule 60(b) motion for relief from a judgment in a [28 U.S.C.] § 2254 or
[28 U.S.C.] § 2255 proceeding.”). A COA is a jurisdictional prerequisite to an
appeal from the final order in a § 2255 proceeding. Although we have authority to
grant a COA, an application for a COA must be considered first by the district
court. Fed. R. App. P. 22(b)(1); Edwards v. United States, 114 F.3d 1083, 1084
(11th Cir. 1997). If the putative appellant does not make an express request for a
COA, the district court should treat his notice of appeal as an application for a
COA. Fed.R.App.P. 22(b)(1); Edwards, 114 F.3d at 1084.
Although appellant did not file an application for a COA, the district court
should have construed his notice of appeal as an application for a COA and
determined whether a COA should issue. Fed. R. App. P. 22(b)(1); Edwards, 114
F.3d at 1084. Because the district court did not do so, we vacate its order denying
appellant’s Rule 60(b) motion and remand the case for the limited purpose of
allowing the court to decide whether to issue a COA.
VACATED AND REMANDED.
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