                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        July 6, 2007

                                                                Charles R. Fulbruge III
                               No. 06-60213                             Clerk
                             Summary Calendar




UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

DANNY HUBBARD,

                                   Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
              for the Southern District of Mississippi
                           No. 5:04-CV-89
                            No. 5:03-CR-1
                        --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Danny Hubbard, a federal prisoner, seeks a certificate of ap-

pealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255

motion as barred by his appeal waiver.         Giving Hubbard the benefit

of liberal construction of his filings, we glean that he argues

that trial counsel was ineffective for failing to (1) file a notice



     *
        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opinion should not be published and is not precedent except under the limited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. 06-60213
                                 -2-

of appeal; (2) provide him with a copy of the plea agreement until

three days after sentencing; and (3) advise him of the contents of

the plea agreement.   He indicates that his plea and his appeal were

not knowingly and voluntarily entered and that he suffers from se-

vere glaucoma that limited his ability to read the terms of the

plea agreement.

     A COA may be issued only if Hubbard has made a substantial

showing of the denial of a constitutional right.          28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

When the denial of relief is based on procedural grounds without

analysis of the underlying constitutional claims, “a COA should

issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the [motion] states a valid claim

of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.”     Slack v. McDaniel, 529 U.S. 473, 484

(2000).

     The record reflects that Hubbard wrote a letter to the dis-

trict court, filed on August 11, 2003, seeking reconsideration of

his sentence or alternatively that his letter serve as his notice

of appeal; the letter should have been construed as a timely filed

motion for reconsideration of the August 15, 2003, judgment of con-

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

United States v. Greenwood, 974 F.2d 1449, 1465-66 (5th Cir. 1992).

Hubbard’s motion for reconsideration thus effectively tolled the
                           No. 06-60213
                                -3-

ten-day period for filing a timely notice of appeal.       See United

States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995); FED. R.

APP. P. 4(b)(1)(A). Because a motion for reconsideration in a crim-

inal case also destroys the finality of the underlying decision,

the August 15, 2003, judgment is not final.   See Brewer, 60 F.3d at

1143-44; United States v. Hatten, 167 F.3d 884, 886 n.2 (5th Cir.

1999).   Hubbard’s § 2255 motion is therefore premature.    See Fass-

ler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988) (holding

that “a criminal defendant may not collaterally attack his convic-

tion until it has been affirmed on direct appeal”).

     Accordingly, the motion for a COA is granted.   The order deny-

ing Hubbard’s § 2255 motion is vacated, and the matter is remanded.

The district court is instructed to (1) dismiss Hubbard’s § 2255

motion without prejudice; (2) construe his letter filed on Aug-

ust 11, 2003, as a timely filed motion for reconsideration of his

sentence; and (3) advise him that he may file a notice of appeal

within ten days of the entry of the ruling on his motion for recon-

sideration of sentence.

     COA GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS.
