* 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this opinion should not be published and is not precedent except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

Fifth Circuit

FILED

August 16, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-21214

c/w No. 03-20389

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH STAFFORD,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-96-CR-79-1

--------------------

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

Joseph Stafford, federal prisoner # 10454-042, appeals the

district court’s judgment resentencing him on one count of

conspiracy to commit wire fraud in violation of 18 U.S.C. § 371. 

The Government has filed a motion to dismiss Stafford’s appeal

for lack of jurisdiction because: Stafford previously raised

these issues in his 28 U.S.C. § 2255 motion; the district court

and this court denied a certificate of appealability (COA); and

without a COA, this court lacks jurisdiction to consider these
No. 02-21214

c/w No. 03-20389

-2-

issues. In addition to the district court’s judgment on

resentencing, Stafford is appealing the district court’s denial

of two motions, one seeking an evidentiary hearing prior to

resentencing and one to recuse Judge Vanessa Gilmore on

resentencing. Stafford need not obtain a COA to appeal the

district court’s judgment on resentencing and the denial of these

motions related to resentencing. See 28 U.S.C. § 2253(c)(1)(B). 

Therefore, the Government’s motion to dismiss the appeal for lack

of jurisdiction is DENIED.

Stafford argues that Judge Gilmore should have recused

herself because she failed to read the trial transcripts and

because she relied on a “confidential sentencing memorandum” in

resentencing him. Because Stafford has not shown any question

concerning Judge Gilmore’s impartiality or that she had any

personal, extrajudicial bias against Stafford, the district court

did not abuse its discretion in denying this motion. See United

States v. Mizell, 88 F.3d 288, 300 (5th Cir. 1996).

Stafford argues that the district court should have vacated

his entire sentence and resentenced him on the substantive counts

of conviction and that the district court should have held an

evidentiary hearing prior to resentencing. These issues are not

properly before the court. Stafford is essentially arguing that

he should have received more relief in the 28 U.S.C. § 2255

proceeding. However, his 28 U.S.C. § 2255 motion was denied and

both the district court and this court denied his COA motions. 
No. 02-21214

c/w No. 03-20389

-3-

Stafford’s appeal following resentencing is a separate criminal

proceeding, not part of his 28 U.S.C. § 2255 proceeding. See

United States v. Scott, 672 F.2d 454, 455 (5th Cir. 1982). The

only judgment which may be reviewed in this appeal is the

district court’s final judgment resentencing Stafford on one

conspiracy conviction. See 28 U.S.C. § 1291. Therefore,

Stafford may not raise these claims in this appeal of the

judgment entered on resentencing.

ALL PENDING MOTIONS DENIED; AFFIRMED.