United States v. Jacobs

Case: 22-40514 Document: 00516635675 Page: 1 Date Filed: 02/06/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit FILED No. 22-40514 February 6, 2023 Summary Calendar

Lyle W. Cayce ____________

Clerk United States of America,

Plaintiff—Appellee, versus

Edward Todd Jacobs,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:17-CV-216 ______________________________

Before Stewart, Willett, and Douglas, Circuit Judges.

Per Curiam: *

Edward Todd Jacobs, federal inmate # 19938-078, pleaded guilty to attempted arson and solicitation of murder for hire and was sentenced to concurrent 188-month terms of imprisonment. In 2017, Jacobs filed a 28 U.S.C. § 2255 motion challenging the imposed sentences as violating his plea agreement, which was dismissed as time barred. Two years later, he moved Case: 22-40514 Document: 00516635675 Page: 2 Date Filed: 02/06/2023

No. 22-40514 to reopen his § 2255 proceedings, which the district court construed as a Federal Rule of Civil Procedure 60(b) motion and denied. Jacobs then filed the instant motion to reconsider, in which he attacked his sentence on essentially the same grounds and again asked the district court to modify the judgment to comport with the plea agreement. The district court denied relief on the merits, and Jacobs has applied for a certificate of appealability (COA) to appeal that ruling.

The district court’s consideration of Jacobs’s motion to reconsider on its merits was error because that motion was in effect a successive § 2255 motion, and Jacobs had not obtained authorization to proceed from this court. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005); 28 U.S.C. § 2244(b)(3)(A). The district court thus had no jurisdiction to grant or deny relief. See Davis v. Sumlin, 999 F.3d 278, 279 (5th Cir. 2021). Accordingly, the district court’s order denying Jacobs’s motion to reconsider is VACATED, and the matter is REMANDED with instructions to dismiss the motion for lack of jurisdiction. See Davis, 999 F.3d at 280. Jacobs’s COA application is DENIED AS MOOT.