     Case: 11-60035     Document: 00511680448         Page: 1     Date Filed: 11/30/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 30, 2011
                                     No. 11-60035
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SEABRON MACKUNDRA MILLENDER, also known as Packy,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:10-CV-49


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Seabron Mackundra Millender, federal prisoner number # 15090-043,
pleaded guilty to conspiracy to possess with intent to distribute a controlled
substance. No direct appeal was filed; however, the district court granted
Millender’s pro se 28 U.S.C. § 2255 motion, in part, permitting an out-of-time
direct appeal, based on defense counsel’s failure to file an appeal. The court
additionally granted a certificate of appealability (COA) on the same ground but
denied Millender leave to proceed in forma pauperis (IFP).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60035   Document: 00511680448      Page: 2   Date Filed: 11/30/2011

                                  No. 11-60035

      Millender now seeks a COA on additional issues, namely that (1) counsel
provided ineffective assistance by failing to argue the appropriate sentencing
guidelines enhancements; (2) his conviction was obtained in violation of due
process; (3) his conviction was obtained in violation of the Confrontation Clause;
and (4) the Government breached his plea agreement. He also seeks leave to
proceed IFP and requests a COA to appeal the issue that formed the basis of the
district court’s orders granting both an out-of-time direct appeal and a COA.
      Because the district court has granted an out-of-time direct appeal and
reentered the original criminal judgment, Millender’s instant § 2255 appeal is
DISMISSED. See Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir. Unit A 1981). We
express no opinion on the claims Millender has raised. See id. In light of the
foregoing, Millender’s COA request is DENIED as unnecessary. His motion to
proceed IFP is likewise DENIED.




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