Summary Calendar LOUIS ALONZO OLIVAREZ v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional…

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40678
Summary Calendar
LOUIS ALONZO OLIVAREZ
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:04-CV-67
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Louis Alonzo Olivarez, Texas prisoner # 1148316, seeks a certificate of
appealability (COA) from the district court’s dismissal without prejudice for
want of prosecution of his 28 U.S.C. § 2254 petition. Olivarez is serving 35-year
sentences on convictions for aggravated assault and burglary of a habitation.
After Olivarez had filed a notice of appeal from the district court’s
dismissal of his § 2254 petition, Olivarez filed a motion pursuant to FED. R. CIV.
United States Court of Appeals
Fifth Circuit
F I L E D
October 17, 2007
Charles R. Fulbruge III
Clerk

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No. 05-40678
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P. 60(b). The district court granted this motion and reinstated Olivarez’s § 2254
petition.
The district court was without jurisdiction to grant Olivarez post judgment
relief because Olivarez’s notice of appeal divested the district court of such
jurisdiction. See Shepherd v. Int’l Paper Co., 372 F.3d 326, 329 (5th Cir. 2004);
Winchester v. United States Atty. for S.D. of Tex., 68 F.3d 947, 950 (5th Cir.1995).
Olivarez has thus demonstrated that reasonable jurists would debate the
correctness of the district court’s procedural ruling. See Slack v. McDaniel, 529
U.S. 473, 484 (2000).
Olivarez’s district court pleadings and his COA motion demonstrate
facially that reasonable jurists could debate whether Olivarez has made a
substantial showing of the denial of a constitutional right. See Houser v. Dretke,
395 F.3d 560, 561-62 (5th Cir. 2004). Accordingly, a COA is GRANTED.
The district court’s grant of post judgment relief is construed as a request
for leave from this court for a remand and to grant such relief. See Shepherd,
372 F.3d at 329. Accordingly, the request is GRANTED; the case is
REMANDED to the district court for re-entry of the judgment reinstating
Olivarez’s § 2254 petition, and for further proceedings as are necessary. See
Willie v. Continental Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984), rev’d on other
grounds, 784 F.2d 706 (5th Cir. 1986).

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