Davis v. Lumpkin

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 15, 2023
• Docket: 23-10693
• Status: Unpublished

Opinion

Case: 23-10693 Document: 00516897194 Page: 1 Date Filed: 09/15/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10693 Summary Calendar FILED ____________ September 15, 2023 Lyle W. Cayce George Ray Davis, Clerk

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division,

Respondent—Appellee. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CV-60 ______________________________

Before Stewart, Clement, and Engelhardt, Circuit Judges. Per Curiam: * George Ray Davis, Texas prisoner # 02297512, moves for leave to proceed in forma pauperis (IFP) in his appeal of the district court’s denial of his motion to stay his 28 U.S.C. § 2254 proceeding. Davis sought to stay his § 2254 proceeding so that he could return to state court to exhaust various claims that he contended arose after he discovered new exculpatory _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10693 Document: 00516897194 Page: 2 Date Filed: 09/15/2023

No. 23-10693

evidence. He contends that the district court erred in denying his stay motion under the rubric set forth in Rhines v. Weber, 544 U.S. 269, 277-78 (2005). As a threshold matter, we must examine the basis of our jurisdiction to hear this appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We may only exercise jurisdiction over final orders and certain interlocutory orders. See 28 U.S.C. § 1291; 28 U.S.C. § 1292; Dardar v. Lafourche Realty Co., 849 F.2d 955, 957 (5th Cir. 1988). Here, because the district court’s order denying Davis’s motion to stay his § 2254 proceeding is neither a final order nor an appealable interlocutory or collateral order, we lack jurisdiction to consider his appeal from that order. See Grace v. Vannoy, 826 F.3d 813, 816-21 (5th Cir. 2016); Dardar, 849 F.2d at 957. Accordingly, Davis’s motion to proceed IFP is DENIED, and his appeal is DISMISSED for lack of jurisdiction. See Grace, 826 F.3d at 820- 21.