                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 4, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40114
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOEL BENAVIDEZ DIAZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC Nos. B-02-CV-131
                          B-01-CR-139-1
                       --------------------

Before JOLLY, EMILIO M. GARZA, and PICKERING, Circuit Judges.

PER CURIAM:*

     Joel Benavidez Diaz, federal prisoner #94714-079, requests a

certificate of appealability (COA) to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion.   This court must examine

the basis of its jurisdiction on its own motion if necessary.

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).     An

examination of the record in this case discloses that no final

judgment has been entered as a separate document as required by



     *
       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this opinion should not be published and is not precedent except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. 04-40114
                                  -2-

FED. R. CIV. P. 58.   See Baker v. Mercedes Benz of N. Am., 114

F.3d 57, 60 (5th Cir. 1997).

     If we were to treat the order of November 14, 2002, as a

Rule 58 judgment, there was no timely notice of appeal filed by

Diaz.     Moreover, because, under the peculiar facts of this case,

it would be unjust to apply the amendments to FED. R. CIV. P. 58,

effective December 1, 2002, we conclude that the appeal must be

dismissed pursuant to the procedure set out in Townsend v. Lucas,

745 F.2d 933, 934 (5th Cir. 1984).     See Burt v. Ware, 14 F.3d

256, 258-59 (5th Cir. 1994).     Diaz may rectify the lack of a

separate document judgment by filing in the district court a

motion requesting the entry of a Rule 58 judgment.     See id.

After a Rule 58 judgment is entered, a new notice of appeal must

be filed within the time prescribed by FED. R. APP. P. 4(a)(1).

See id.

     APPEAL DISMISSED; COA DENIED AS MOOT.
