USA v. Saenz

Filing 920070109

Opinion

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 06-40880 USDC No. 5:03-CR-185-0-3 _______________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISRAEL SAENZ, JR., Defendant-Appellant. ___________________________________ Appeal from the United States District Court for the Southern District of Texas ___________________________________ Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* In this case filed pursuant to 28 U.S.C. 2255, the district court entered a final judgment dismissing the action on April 5, 2006. On April 20, 2006, the petitioner filed a pro se In his request for a January 9, 2007 Charles R. Fulbruge III Clerk notice of appeal from the final judgment. certificate of appealability, the petitioner noted that the district court failed to address one of the issues in his motion. On May 15, 2006, the district court entered an order vacating its earlier final judgment dismissing the case and restoring the case 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * 06-40880 -2on the docket. The district court was divested of jurisdiction by the filing of a timely notice of appeal. See Alvestad v. Monsanto Co., 671 F.2d 908, 911 n.2 (5th Cir.), cert. denied, 459 U.S. 1070 (1982). This court has received a request from the district court to remand the case so that it can address the remaining issue in the 2255 motion. We remand the case to the district court to re-enter its judgment and conduct such further proceedings as may be necessary. See Willie v. Continental Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984), vacated by grant of rehearing en banc, 760 F.2d 87 (5th Cir. 1985), on rehearing, 784 F.2d 706 (5th Cir. 1986) (en banc). See also Travelers Inc. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1407 n.3 (5th Cir. 1994) (citing panel opinion in Willie). jurisdiction. REMANDED. We do not retain

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