*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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-41150

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HANNELL DEAN COOPER,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

(6:95-CR-36-5)

October 23, 1997

Before POLITZ, Chief Judge, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Hannell Cooper appeals the district court’s denial of his motion to withdraw

his guilty plea. For the reasons assigned, we affirm.

Background
1

 21 U.S.C. § 841(a)(1).

2

 Fed.R.App.P. 3.

3

 Fed.R.App.P. 4(b).

4 United States v. Sacerio, 952 F.2d 860 (5th Cir. 1992).

5 Section 2255 was enacted to provide prisoners habeas corpusrelief in cases where they

claim to be unconstitutionally imprisoned after sentencing. 28 U.S.C. § 2255.

2

Acting pursuant to a written plea agreement, Cooper waived indictment and

pled guilty to one count of possession with intent to distribute cocaine base.1

Thereafter he filed a motion to withdraw his guilty plea and a motion to dismiss his

counsel contending that his attorney pressured him into pleading guilty to a crime

he did not commit. The district court entered a written order denying these motions

and Cooper prematurely filed a petition to vacate sentence under 28 U.S.C. § 2255.

At sentencing, Cooper renewed the two motions. The district court denied same

and Cooper appealed the denial of his motion to withdraw his guilty plea.

Analysis

For this court to have jurisdiction, the appellant must take a timely appeal.2

Although an appeal in a criminal case is to be taken within 10 days after the entry

of judgment,3 we have treated a premature appeal as timely filed as of the date of

entry of judgment.4 In the case at bar, Cooper filed a 2255 petition after the district

court denied his motions to withdraw his plea and to dismiss his attorney.5
6 Further evidence of Cooper’s intent to appeal can be found in the transcript of his

sentencing hearing where he informed the judge that he thought the “2255 form” was an

appeal.

7

 Fed.R.App.P. 3(c).

8 See United States v. Grant, 117 F.3d 788 (5th Cir. 1997) (stating the appropriate

standard of review).

9

 Fed.R.Crim.P. 32(e).

10 Grant.

3

Although Cooper had not been sentenced at the time he filed his 2255 petition, thus

making it premature, hisresponses on the preprinted form made it abundantly clear

that Cooper thought he was appealing the district court’s denial of his motions.6

Therefore, in the interest of justice we treat Cooper’s 2255 petition as a timely

appeal as of the date of final judgment. The petition filed by Cooper meets all of

the requirements for a notice of appeal and therefore will be treated as such.7 We

conclude that jurisdiction exists and now address the issue raised in this appeal,

specifically, whether the district court abused its discretion in declining to permit

Cooper to withdraw his guilty plea.8

The district court may permit a defendant to withdraw a guilty plea upon a

showing of a fair and just reason.9 There is no absolute right to such withdrawal

and the court must consider various factors, including whether withdrawal would

substantially inconvenience the court or waste judicial resources.10 The record
4

revealsthatCooper was questioned carefully by the district court before acceptance

of his guilty plea, and in its written order denying Cooper’s motion the court

expressed the conviction that Cooper knowingly and voluntarily entered his plea

of guilty and was, in fact, guilty of the offense charged. The court further noted

that to permit Cooper to withdraw his plea immediately in advance of the trial of

the remaining defendants, likely would have impacted the scheduling and duration

of that trial. We find neither error nor abuse of discretion in the trial court’s denial

of Cooper’s motion and its ruling thereon is AFFIRMED.