IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50702 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LOUIS G. REESE, III,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-90-CR-117-5 --------------------

December 16, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Louis G. Reese, III, appeals following an order of the

district court that granted in part and denied in part his

motion. On direct appeal after Reese’s guilty plea

to conspiracy to defraud the United States, we remanded solely

for a redetermination of the amount of restitution that Reese

owed. See United States v. Reese,

(5th Cir.

1993). A hearing was held on remand, and the district court

determined that the proper amount of restitution 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-50702 -2-

$3,450,442.33. Reese failed to perfect an appeal of the district

court’s order. In a § 2255 motion filed over three years later,

Reese argued that he received ineffective assistance of counsel

when his attorney (i) failed to call certain witnesses at the

restitution hearing held on remand and (ii) failed to file a

timely notice of appeal. The district court denied Reese’s claim

of ineffectiveness at the remand hearing, but it granted him the

right to file an out-of-time appeal of the restitution order

entered on remand. Reese filed a notice of appeal, referencing

both the final order entered by the district court on the § 2255

motion and, “as permitted in that Order,” the district court’s

years-old restitution order.

Reese makes several arguments on appeal, although it is not

entirely clear which issues relate to the partial denial of his

§ 2255 motion and which relate to the out-of-time appeal

permitted by the district court. In his brief, Reese insists

that he does not need a certificate of appealability (COA) to

appeal the district court’s denial of his § 2255 motion. We turn

first to that argument.

Reese argues that no COA is necessary because the district

court granted him partial § 2255 relief. However, the district

court denied Reese’s claim that he suffered ineffective

assistance at the remand hearing. Under § 2253(c)(1)(B), Reese

needs a COA in order to appeal a “final order in a proceeding

under section 2255.” Accordingly, a COA is required before the

appeal of the partial denial of the § 2255 motion can go forward.

See Lackey v. Johnson,

(5th Cir. 1997) No. 98-50702 -3-

(declining to reach issues for which no COA was issued).

Although Reese has not moved for a COA, we may construe his

notice of appeal as a request for the necessary COA. See Fed.

R. App. P. 22(b)(2). A COA will issue only “if the applicant has

made a substantial showing of the denial of a constitutional

right.”

(c)(2).

Reese’s motion argued that he suffered ineffective

assistance when his attorney failed to call certain witnesses at

the remand hearing.1 We will not issue a COA as to this claim.

There is a jurisdictional obstacle facing Reese.

Citing United States v. Segler,

(5th Cir.

1994), and United States v. Hatten,

(5th

Cir. 1999), the Government contends that Reese’s claim of

ineffectiveness at the remand hearing was outside the scope of

§ 2255. We agree. In Segler, we held that in enacting § 2255,

Congress “meant to limit the types of claims cognizable under

§ 2255 to claims relating to unlawful custody.”

.

Because Segler’s ineffectiveness claim related only to the

district court’s imposition of a fine, it was outside the scope

of § 2255. Id. Recently, we recognized that Segler also

forecloses § 2255 claims that relate to restitution. Hatten,

. We concluded there that “[t]he district court did

not have jurisdiction pursuant to § 2255 to issue” an order

1 Reese repeatedly calls this remand hearing a Fed. R. Crim. P. 35(a) hearing. He is mistaken. Although a Rule 35(a) motion was filed on Reese’s behalf in the district court, that motion was filed after the restitution hearing was held on remand. The district court denied the Rule 35 motion in an order separate from its restitution order. Reese did not appeal the denial of the Rule 35 motion. No. 98-50702 -4-

relating to Hatten’s restitution. Id. These cases compel the

conclusion that Reese’s claim of ineffectiveness at the remand

hearing is outside the ambit of § 2255. Accordingly, we decline

to issue a COA because (i) Reese has specifically not asked for a

COA and (ii) Segler and Hatten hold that a claim like Reese’s is

not cognizable under § 2255.

Reese also argues that the district court erred in failing

to order a de novo resentencing after it granted him the right to

file an out-of-time appeal. This claim is perplexing. In his

motion, Reese did not request a de novo resentencing. The

district court did not vacate its prior restitution order, and it

explained to Reese that he could simply file a notice of appeal

to obtain the out-of-time appeal he had been granted. Reese

filed a notice of appeal referencing the restitution order.

Reese was, therefore, provided a vehicle for the relief he was

purportedly granted. Reese has not made a “substantial showing”

that the denial of a de novo resentencing worked to deprive him

of any right. Accordingly, we deny him a COA as to the issue.

On his direct appeal from the restitution order entered

after remand, Reese argues that the district court erred in

computing the amount of restitution he owed. He apparently also

seeks to argue on direct appeal his claim that he received

ineffective assistance at the remand hearing. Neither the

Government nor Reese discusses what effect Segler and Hatten had

on the district court’s ability to grant Reese’s § 2255 motion so

that he could take a direct appeal of the restitution order.

Nevertheless, we must consider sua sponte the question whether No. 98-50702 -5-

the district court had subject-matter jurisdiction to grant Reese

this relief. See id. at 887 (noting our obligation to determine

whether the district court possessed jurisdiction even when the

parties have not questioned the court’s jurisdiction).

Segler and Hatten indicate that the district court lacked

jurisdiction to consider Reese’s claim that counsel ineffectively

failed to file a timely notice of appeal from the restitution

order entered on remand. Like Reese’s claim of ineffectiveness

at the remand hearing, this claim also falls outside § 2255's

scope because it does not allege any “harm that relates to

[Reese’s] custody.” Segler,

. Instead, the claim

was brought by Reese so that he could take an appeal of the

district court’s restitution order; the alleged harm related only

to restitution, not custody. See also Reese,

(remanding only as to the proper amount of restitution). Just as

the district court in Hatten was without jurisdiction to enter an

order altering Hatten’s restitution regime, the district court

here was without jurisdiction via § 2255 to grant Reese’s request

to file an out-of-time appeal of its restitution order. Section

2255 is limited to claims directed at obtaining a movant’s

release from custody, and Reese’s § 2255 motion alleged no such

claims. Accordingly, because the district court lacked

jurisdiction to grant Reese an out-of-time appeal, we cannot

reach the issues Reese attempts to raise on direct appeal.

Instead, we VACATE the district court’s order granting an out-of-

time appeal and REMAND with instructions that Reese’s § 2255

motion be dismissed for want of subject-matter jurisdiction. No. 98-50702 -6-

COA DENIED; VACATED and REMANDED.