Curtis Sheppard, Jr. v. Lorie Davis, Director

Opinion

Case: 18-40172 Document: 00514676664 Page: 1 Date Filed: 10/10/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 18-40172 October 10, 2018 Lyle W. Cayce

CURTIS LEE SHEPPARD, JR., Clerk

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:17-CV-439

Before JONES, ELROD, and ENGELHARDT, Circuit Judges. PER CURIAM: * Curtis Lee Sheppard, Jr., Texas prisoner # 1656666, seeks a certificate of appealability (COA) to appeal the district court’s denial of his motion for preliminary injunctive relief. His motion for injunctive relief was filed after the district court denied his 28 U.S.C. § 2254 petition which challenged a prison disciplinary case. This court has denied Sheppard a COA to appeal the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 18-40172 Document: 00514676664 Page: 2 Date Filed: 10/10/2018

No. 18-40172

denial of that § 2254 petition. See Sheppard v. Davis, No. 18-40026 (5th Cir. Sept. 7, 2018).

Under Rule 11(a) of the Rules Governing § 2254 Proceedings, “the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” In this case, the district court did not rule on whether a COA should issue in connection with Sheppard’s postjudgment motion for injunctive relief. Because the district court did not do so, we lack jurisdiction. See Black v. Davis, 902 F.3d 541, 544-45 (5th Cir. 2018); Cardenas v. Thaler, 651 F.3d 442, 443-44 (5th Cir. 2011).

Accordingly, we REMAND the case to the district court for further proceedings consistent with Rule 11(a).