                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 6, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 03-41445
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ADOLFO MORENO-RIOS, also known as
Juan Herrera-Martinez, also known as
Jesus Felix Sustaita,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC Nos. L-00-CV-100
                           L-97-CR-149-1
                       --------------------

Before GARWOOD, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Adolfo Moreno-Rios, federal prisoner number 71268-079,

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


     *
        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that this opinion should not be published and is not precedent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. 03-41445
                                 -2-

that no final judgment has been entered as a separate document as

required by 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 May 31, 2001, as a Rule 58

judgment, Moreno’s pro se notice of appeal, which is stamped as

filed on April 14, 2002, is untimely.      See FED. R. APP. P.

4(a)(1).   Moreover, both the motions to reopen the time to file a

notice of appeal or to extend time to file a notice of appeal are

nullities, as neither meet the requirements of FED. R. APP. P.

4(a)(5) or (6).    See Wilkens v. Johnson, 238 F.3d 328, 330-31

(5th Cir. 2001).

     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).   Moreno 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 Rule 4(a)(1).      See id.

     APPEAL DISMISSED; COA DENIED AS MOOT.
