                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               July 9, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 03-30244
                           Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JUSTIN E. CALLAHAN,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                       USDC No. 99-CR-69-B
                      --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Justin E. Callahan, federal prisoner # 03245-095, is

currently serving a 180-month sentence for being a felon in

possession of a firearm.    Callahan requests a certificate of

appealability (“COA”) to appeal the district court’s denial of

his motion to file an out-of-time 28 U.S.C. § 2255 motion.

Because Callahan’s motion did not request habeas relief, he need

not obtain a COA in order to proceed on appeal.    Accordingly, his

request for COA is DENIED AS UNNECESSARY.

     *
        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that this opinion should not be published and is not precedent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. 03-30244
                                -2-

     Callahan’s motion to file an out-of-time 28 U.S.C. § 2255

motion was not accompanied by a 28 U.S.C. § 2255 motion on the

merits.   We agree with the reasoning of United States v. Leon,

203 F.3d 162 (2d Cir. 2000), and conclude “that a federal court

lacks jurisdiction to consider the timeliness of a § 2255

[motion] until a [motion] is actually filed.”     Id. at 163.

Before the motion itself is filed, “there is no case or

controversy to be heard, and any opinion we were to render on the

timeliness issue would be merely advisory.”     Id.   Accordingly,

the district court’s denial of Callahan’s motion is AFFIRMED

because the district court lacked jurisdiction to entertain the

motion.

     COA DENIED AS UNNECESSARY; AFFIRMED.
