821 F.3d 632

UNITED STATES of America, Plaintiff-Appellee v. David RODRIGUEZ, Defendant-Appellant.

No. 15-50239.

United States Court of Appeals, Fifth Circuit.

May 4, 2016.

Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.

Gregory L. Ahlgren, Esq. (argued), Ahl-gren Law Firm, Laredo, TX, for Defendant-Appellant.

Before BARKSDALE, CLEMENT, and HAYNES, Circuit Judges.

*633EDITH BROWN CLEMENT, Circuit Judge:

After a jury trial, David Rodriguez was convicted of conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. He appealed. Although he was initially represented by counsel, he filed a request to proceed pro se, which was granted by this court. On direct appeal, we affirmed the district court’s judgment. See United States v. Rodriguez, 521 Fed.Appx. 313 (5th Cir.), cert. denied, — U.S. -, 134 S.Ct. 126, 187 L.Ed.2d 89 (2013).

Rodriguez subsequently filed a pro se § 2255 motion, arguing that he did' not intelligently waive his right to appellate counsel and seeking a new direct appeal. Adopting the recommendation of the magistrate judge, the district court granted the motion. The district court concluded that, despite Rodriguez’s unequivocal request to proceed pro se, he had not knowingly waived his right to counsel on appeal. The district court granted Rodriguez a new appeal.1 We vacate the district court’s § 2255 judgment and dismiss this second direct appeal. - -

A criminal, defendant is not entitled to two appeals. United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir.1978) (per curiam); see United States v. McCollom, 664 F.2d 56, 59 (5th Cir.1981) (“Section 2255 may not be used to secure a second direct appeal.”).2 In granting Rodriguez’s § 2255 motion and providing him a new appeal, thq, district court concluded that this court erred in allowing him to proceed pro se.3 But the magistrate judge’s report and recommendation, '' adopted by the district court, failed to identify any jurisdiction or authority for its review and abrogation of our preceding order, which found that Rodriguez “clearly and unequivocally waived his right to appellate counsel.”4

An error in the reasoning of this court can only be corrected by application to .this court in the form of a motion to recall the mandate or a petition for rehearing, or by writ of certiorari to the Supreme Court. See Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir.2000) (“An individual *634seeking to avoid the effeets of an appellate court’s prior decision may bring to that court a motion to recall its mandate.”); United States v. Hughes, 41 Fed.Appx. 276, 279 (10th Cir.2002) (finding that the district court correctly ruled that righting alleged errors in the appellate court’s opinion on direct appeal “is not the province of a § 2255 motion” and explaining that “such matters must be pursued via a motion for rehearing and/or via a petition for certiora-ri to the Supreme Court”). In his §. 2255 motion, Rodriguez claimed that his waiver of appellate counsel was neither knowing nor voluntary. But we “decided this issue ... on direct appeal when his conviction was affirmed. It may not be resurrected and urged anew.” McCollom, 664 F.2d at 59; see United States v. Goudeau, 512 Fed.Appx. 390, 393 (5th Cir.2013) (“In order for the law-of-the-ease doctrine to apply, the issue need not have been explicitly decided; the doctrine also applies to those issues decided by necessary implication.” (internal quotation marks omitted)).' Neither the district court nor Rodriguez point to any authority that would authorize the district court to grant his motion , based on an asserted error in bur prior determination that Rodriguez could.proceed pro se on appeal.

Because we hold that the district court improperly granted Rodriguez’s § 2255 motion, we VACATE the judgment and DISMISS this appeal.

United States v. Rodriguez
821 F.3d 632

Case Details

Name
United States v. Rodriguez
Decision Date
May 4, 2016
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821 F.3d 632

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United States

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