                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        March 17, 2004

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                               No. 03-41485
                             Summary Calendar



                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

                      CHARLES ANTHONY FANTOZZI,

                                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC Nos. C-03-CV-223
                           and C-01-CR-135-1
                         --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Charles    Anthony   Fantozzi,   federal     prisoner    #    45227-083,

requests   a   certificate   of   appealability    (COA)     to   appeal    the

district court’s denial of his 28 U.S.C. § 2255 motion as time-

barred.    He argues that the district court erred in using the date

of the finality of his conviction as the starting date for the one-

year time limit for filing his 28 U.S.C. § 2255 motion, rather than

the later date on which he discovered that his trial counsel had


     *
        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that this opinion should not be published and is not precedent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.
failed to perfect his appeal.   He seeks a COA to present his claim

that he received ineffective assistance of counsel because his

trial counsel failed to perfect his direct appeal, among other

claims.

     However, the record shows that on March 15, 2002, Fantozzi

filed a motion to proceed in forma pauperis (IFP) on appeal

following the entry of the judgment of conviction and within the

10-day time limit for filing a notice of appeal, which clearly

evinced his intent to file a direct appeal.   See Mosley v. Cozby,

813 F.2d 659, 660 (5th Cir. 1987). Consequently, Fantozzi’s motion

to proceed IFP should be construed as a timely notice of direct

appeal from the judgment of conviction, and we will not consider

the arguments raised in Fantozzi’s COA application because “[a]

motion to vacate sentence under 28 U.S.C. § 2255 will not be

entertained during the pendency of a direct appeal, inasmuch as the

disposition of the appeal may render the motion moot.”    Welsh v.

United States, 404 F.2d 333, 333 (5th Cir. 1968), abrogated on

other grounds, United States v. Ortega, 859 F.2d 327, 334 (5th Cir.

1988).

     Accordingly, we grant COA and vacate the district court’s

order denying 28 U.S.C. § 2255 relief and judgment entered on

September 24, 2003, and its order denying Fantozzi’s motion for

reconsideration entered on October 31, 2003.       On remand, the

district court is instructed to (1) dismiss Fantozzi’s 28 U.S.C.

§ 2255 motion without prejudice; (2) construe Fantozzi’s motion for

                                 2
leave to proceed IFP on appeal filed on March 15, 2002, as a timely

notice of direct appeal of its judgment entered on March 14, 2002;

and (3) direct its clerk to file Fantozzi’s motion for leave to

proceed IFP on appeal filed on March 15, 2002, as a notice of

direct   appeal   from   the   district   court’s   judgment   entered   on

March 14, 2002.

     APPLICATION FOR COA GRANTED; VACATED AND REMANDED.




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