United States v. Daley

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 6, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41547
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND ALPHONSO DALEY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CV-163
USDC No. 2:01-CR-17-1
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Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Raymond Alphonso Daley, a federal prisoner (# 89980-079),
moves for a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate
his sentence. Following a remand by this court pursuant to
Thompson v. Montgomery, 853 F.2d 287 (5th Cir. 1988), the
district court determined that Daley had failed to establish that
he had filed a timely notice of appeal. The clerk’s office has
directed Daley to brief this jurisdictional issue, but he has
failed to do so. Daley has effectively abandoned any challenge

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O R D E R
No. 03-41547
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to the district court’s determination that his notice of appeal
was untimely, see Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987), and this court is
without appellate jurisdiction. See Dison v. Whitley, 20 F.3d
185, 186 (5th Cir. 1994). Accordingly, the appeal is DISMISSED.
Daley’s COA application is DENIED as moot.
APPEAL DISMISSED; COA DENIED AS MOOT.

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