IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-50926
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE MIGUEL MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CV-406
USDC No. 5:06-CR-649-ALL
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Miguel Martinez, federal prisoner # 82797-180, moves in this court
for a certificate of appealability (COA) and leave to proceed in forma pauperis
(IFP) on appeal from the district court’s denial of his 28 U.S.C. § 2255 motion.
In his § 2255 motion, Martinez challenged his guilty plea conviction and
sentence for possession with intent to distribute in excess of five kilograms of
cocaine.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50926
After Martinez filed a notice of appeal from the denial of his § 2255 motion,
he filed in the district court a motion for appointment of appellate counsel or for
review of his case. The district court granted this motion, allowed Martinez to
withdraw his guilty plea, and ordered the case be set for trial. The district court
was without jurisdiction to grant such relief. See Shepherd v. Int’l Paper Co.,
372 F.3d 326, 329 (5th Cir. 2004); Lairsey v. Advance Abrasives Co., 542 F.2d
928, 932 (5th Cir. 1976).
We construe the district court’s grant of relief as a request for remand and
authorization to grant relief. See Willie v. Continental Oil Co., 746 F.2d 1041,
1046 (5th Cir. 1984). The request is GRANTED, and the case is REMANDED
to the district court for re-entry of its order granting relief and for further
proceedings as are necessary. Martinez’s motions for a COA and leave to
proceed IFP on appeal are DENIED as unnecessary.
2