Lewis v. Lumpkin

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 15, 2021
• Docket: 20-40076
• Status: Unpublished

Opinion

Case: 20-40076 Document: 00515744657 Page: 1 Date Filed: 02/15/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED February 15, 2021 No. 20-40076 Lyle W. Cayce Summary Calendar Clerk

Aundri D. Lewis,

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 Southern District of Texas USDC No. 4:08-CV-2710

Before Jones, Costa, and Wilson, Circuit Judges. Per Curiam:* In 2005, Aundri D. Lewis, Texas prisoner # 1305555, was convicted of aggravated assault. He moves for a certificate of appealability (COA) in regard to his 28 U.S.C. § 2254 proceedings relating to that conviction.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-40076 Document: 00515744657 Page: 2 Date Filed: 02/15/2021

No. 20-40076

“[W]e must consider the basis of our own jurisdiction, sua sponte if necessary.” Perez v. Stephens, 784 F.3d 276, 280 (5th Cir. 2015). A timely notice of appeal is a jurisdictional requirement for this appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007). Lewis’s notice of appeal was filed more than three months after the district court’s October 18, 2019 order denying his motions for a COA and leave to proceed in the district court in forma pauperis. The notice of appeal therefore is untimely as to that order. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). It also would be untimely with respect to the district court’s earlier judgment denying Lewis’s § 2254 application in 2009. See § 2107(a); Fed. R. App. P. 4(a)(1)(A). Given the untimeliness of Lewis’s notice of appeal, we lack jurisdiction over this appeal. Accordingly, the appeal is DISMISSED for lack of jurisdiction, and Lewis’s motion for a COA is DENIED AS MOOT.