Graham v. Dretke

102 F. App'x 420

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 8, 2004
• Docket: 03-21098
• Status: Unpublished

Opinion

PER CURIAM: *

Derrick Graham, Texas prisoner # 813442, was convicted of capital murder and was sentenced to life imprisonment. He requests a certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. We previously remanded this case to the district court to determine when Graham submitted his notice of appeal to prison authorities for mailing. The district court determined that Graham’s notice of appeal was submitted for mailing on October 29, 2003. Graham does not challenge this finding. The last day for filing a timely notice of appeal was October 27, 2003. See Fed. R.App. P. 4(a); Fed. R.App. P. 26(a)(3). Because the notice of appeal is untimely, we dismiss Graham’s appeal for lack of jurisdiction and deny his motion for a COA as moot. See United States v. Garcia-Machado, 845 F.2d 492, 493 (5th Cir.1988).

APPEAL DISMISSED; COA DENIED AS MOOT.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.