     Case: 13-41129      Document: 00512765645         Page: 1    Date Filed: 09/11/2014




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


                                      No. 13-41129                              FILED
                                                                        September 11, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

COREY MINOR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CV-317


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Corey Minor, federal prisoner # 14282-078, pleaded guilty pursuant to a
plea agreement to mail fraud. As part of the plea agreement, Minor agreed to
waive “the right to appeal the conviction and sentence in this case on all
grounds.” He further agreed “not to contest his sentence in any post-conviction
proceeding, including, but not limited to, a proceeding under 28 U.S.C. § 2255.”
He reserved the right, however, to appeal (1) any sentence exceeding the
statutory maximum punishment; (2) the validity of the appeal waiver if it was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 13-41129

affected by the ineffective assistance of counsel; (3) an upward departure from
the Guidelines; and (4) any mathematical errors by the court in the calculation
of the guideline level.
      Proceeding pro se, Minor filed a motion to vacate sentence pursuant to
§ 2255 and memorandum in support, asserting that counsel rendered
ineffective assistance by failing to review discovery prior to advising Minor to
plead guilty, by advising Minor to plead guilty, by not requesting or obtaining
material and exculpatory evidence prior to advising Minor to plead guilty, and
by being unfamiliar with Minor’s sentencing exposure and with the
substantive statute itself. He also contended that the Government failed to
hand over exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83
(1963). The district court adopted the magistrate judge’s recommendation to
dismiss Minor’s claims as barred by the appeal waiver in his plea agreement.
      The judgment was entered on September 28, 2012. Minor filed a motion
for reconsideration. Although unclear when precisely Minor filed his motion
pursuant to the prisoner mailbox rule, the record reflects he did so on a date
no earlier than October 31, 2012, the date he signed it. Almost a year later, on
September 10, 2013, the district             court denied Minor’s motion for
reconsideration. Within 30 days of this order, Minor filed a notice of appeal.
Minor now seeks a certificate of appealability (COA) to challenge the dismissal
of his § 2255 claims, and he seeks leave to proceed in forma pauperis (IFP) on
appeal.
      “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). A timely
notice of appeal is a prerequisite to the exercise of appellate jurisdiction in a
civil case. Bowles v. Russell, 551 U.S. 205, 213-14 (2007). The notice of appeal
in a civil action where the United States is a party must be filed within 60 days



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                                 No. 13-41129

of entry of the judgment or order from which the appeal is taken. FED. R. APP.
P. 4(a)(1)(B)(i). Minor did not file a notice of appeal within 60 days of the
district court’s judgment dismissing his § 2255 claims. Nor did he file a motion
for reconsideration within the 28-day time limit for filing under Federal Rule
of Civil Procedure 59(e). Because the motion for reconsideration was filed more
than 28 days after entry of the judgment dismissing his complaint, it must be
treated as a Rule 60(b) motion for purposes of Federal Rule of Appellate
Procedure 4(a)(4)(A)(v) and (vi). See Harcon Barge Co., Inc. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc). The filing of a Rule
60(b) motion does not suspend the time for filing a notice of appeal from the
underlying judgment.      See FED. R. APP. P. 4(a)(4); Hamilton Plaintiffs v.
Williams Plaintiffs, 147 F.3d 367, 371 n.10 (5th Cir. 1998). Where, as here,
the notice of appeal is timely only as to the motion to reconsideration, it “does
not bring up the underlying judgment for review.” Bailey v. Cain, 609 F.3d
763, 767 (5th Cir. 2010). Therefore, we consider only the district court’s denial
of the Rule 60(b) motion.
        To obtain a COA, Minor must make a substantial showing of the denial
of a constitutional right or show that reasonable jurists could debate whether
the issues presented are adequate to deserve encouragement to proceed
further. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484
(2000).    Where, as here, a district court dismisses a movant’s claims on
procedural grounds without reaching the underlying constitutional claims, the
movant must show that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling in addition to making a
substantial showing of the denial of a constitutional right. Slack, 529 U.S. at
484.




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                                  No. 13-41129

      The district court’s procedural ruling that Minor’s claims are barred by
the appeal waiver is debatable by reasonable jurists. See Slack, 529 U.S. at
484. By the plain language of the appeal waiver, Minor waived only the right
to collaterally challenge his sentence; the appeal waiver was silent with regard
to any right to contest the validity of Minor’s guilty plea conviction in a
collateral proceeding. See United States v. Palmer, 456 F.3d 484, 488 (5th Cir.
2006). Although the normal procedure would be to order full briefing by all
parties, “further briefing on the issue [is] unnecessary,” as the issue before us
is “indisputably resolved” by Minor’s COA application and the record. See
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). The district court’s
ruling is clearly contrary to our precedent.
      We reach the same result even though our review is limited to the denial
of Minor’s motion for reconsideration. The appeal of a denial of a motion for
reconsideration is reviewed for an abuse of discretion. Travelers Ins. Co. v.
Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 (5th Cir. 1994). “A district court
abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.” United States v. Urias-Marrufo, 744
F.3d 361, 364 (5th Cir. 2014) (internal quotation marks and citation omitted);
see Benson v. St. Joseph Reg’l Health Ctr., 575 F.3d 542, 547-48 (5th Cir. 2009)
(Rule 60(b)(1) motion filed within the time for noticing an appeal). The district
court, in denying Minor’s motion for reconsideration, maintained that denial
was proper “based on the [appeal] waiver,” to which Minor knowingly and
voluntarily pleaded guilty. Although now considered in the context of a motion
for reconsideration, the district court’s decision was nevertheless based on an
erroneous assessment of the evidence and an error of law. See Palmer, 456
F.3d at 488. It was an abuse of discretion. See Liljeberg Enters., Inc., 38 F.3d
at 1408.



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     Accordingly, IT IS ORDERED that a COA is GRANTED. Furthermore,
because the district court did not consider the merits of Minor’s claims but
erroneously dismissed on a procedural ground, the district court’s order
denying reconsideration because Minor’s claims were foreclosed by his appeal
waiver is VACATED, and this matter is REMANDED for further proceedings
not inconsistent herewith. Minor’s IFP motion is GRANTED.




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