711 F.2d 41 (5th Cir. 1983), 83-2092, United States v. Santora

Docket Nº:83-2092
Citation:711 F.2d 41
Party Name:UNITED STATES of America, Petitioner-Appellee, v. Frank SANTORA, Jr., Respondent-Appellant.
Case Date:July 18, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 41

711 F.2d 41 (5th Cir. 1983)

UNITED STATES of America, Petitioner-Appellee,


Frank SANTORA, Jr., Respondent-Appellant.

No. 83-2092

United States Court of Appeals, Fifth Circuit

July 18, 1983

Page 42

Frank Santora, Jr., pro se.

James R. Gough, John M. Potter, Asst. U.S. Attys., Houston, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Convicted of conspiracy, 18 U.S.C. § 371, and of interstate transportation of stolen securities, 18 U.S.C. § 2314, Frank Santora was sentenced to two consecutive three-year sentences. His conviction was affirmed on direct appeal. United States v. Santora, 619 F.2d 1052 (5th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 219 (1980). Santora subsequently moved pro se under Fed.R.Crim.P. 35 for an order vacating his sentences, contending that the consecutive sentences violated the double jeopardy clause of the fifth amendment. Santora maintains that the two sentences constituted double punishment for a single offense. Relief was denied without a hearing on January 31, 1983; Santora appealed on February 15, 1983.

We sua sponte examine our jurisdiction to entertain this appeal for "it is incumbent upon federal courts--trial and appellate--to constantly examine the basis of jurisdiction, doing so on our own motion if necessary." Save The Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.1981). An appeal from a ruling on a Rule 35 motion, considered part of the original criminal proceeding, must be taken within ten days. United States v. Scott, 672 F.2d 454 (5th Cir.1982). If Santora's appeal merely challenged the denial of relief under Rule 35, it would have to be dismissed as untimely filed. Birl v. Estelle, 660 F.2d 592 (5th Cir.1981). If, however, the appeal is taken as a § 2255 challenge to denial of relief, it would be timely. Fed.R.App.P. 4(a).

Although similar, Rule 35 and § 2255 are not coterminous. Assuming petitioner is in custody, however, both provide a vehicle for attacking an illegal sentence. Mindful of the liberality accorded pro se filings, we therefore elect to construe Santora's ill-styled Rule 35 pleading as a request for relief under § 2255. In so doing we join our colleagues in several other circuits. United...

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