Leggett v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2000
• Docket: 99-10649
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10649 Conference Calendar

JEFF LEGGETT,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; DARWIN SANDERS, Warden,

Respondents-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:95-CV-310 - - - - - - - - - - June 13, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Jeff Leggett, Texas prisoner # 590716, moves this court for

a certificate of appealability (COA), following the district

court’s dismissal of his petition for a writ of habeas corpus, 28

U.S.C. § 2254. Because Leggett’s notice of appeal was untimely,

the only issue before the court is whether the district court

abused its discretion by denying Leggett’s request to file a late

notice of appeal based upon excusable neglect. See United States

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-10649 -2-

v. Clark, 51 F.3d 42, 43 n.5 (5th Cir. 1995)(setting forth the

standard for review of excusable-neglect finding).

Leggett’s argument that his request to file a late notice of

appeal should have been granted because he relied upon the

assertions of his “agent” that the habeas proceedings were being

held in abeyance is unavailing. The district court’s final

judgment dismissing Leggett’s habeas petition put him on notice

that the 30-day appeal period under Fed. R. App. P. 4(a)(1)(A)

had begun to run. Additionally, Leggett’s argument that his time

to appeal did not begin to run until after he received notice of

the district court’s final judgment of dismissal is legally

incorrect. See Fed. R. App. P. 4(a)(1)(A).

Leggett fails to show that the district court abused its

discretion by denying his request to file a late notice of appeal

based upon excusable neglect, and the appeal therefore is

DISMISSED for lack of jurisdiction. Leggett’s motions for a COA,

injunctive relief, and permission to supplement the record are

DENIED because of the lack of appellate jurisdiction.

APPEAL DISMISSED; MOTIONS DENIED.