Moore v. Dretke

178 F. App'x 350

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 25, 2006
• Docket: 04-40464
• Status: Unpublished

Opinion

PER CURIAM: *

Wardell Moore appeals, pro se, the dismissal of his successive 28 U.S.C. § 2254 application, which challenged his sentence following his conviction for aggravated assault with a deadly weapon. The district court ruled the application was moot due to Moore’s release from prison. Moore contends his claim is not moot. The respondent claims the district court lacked jurisdiction to consider Moore’s successive application.

Moore’s first § 2254 application was denied in October 2001. Moore v. Vandel, No. H-99-3739 (S.D. Tex. 30 Oct. 2001) (unpublished). The district court could consider Moore’s successive petition only if he had obtained an order from this court authorizing the district court to do so. See 28 U.S.C. § 2244(b)(3); United States v. Key, 205 F.3d 773, 774 (5th Cir.2000). Because Moore did not do so, the district court lacked jurisdiction to consider the successive petition. Key, 205 F.3d at 774. Consequently, we vacate the judgment of the district court and remand this matter with instructions to dismiss for lack of jurisdiction. See Crone v. Cockrell, 324 F.3d 833, 838 (5th Cir.), cert. denied, 540 U.S. 910, 124 S.Ct. 287, 157 L.Ed.2d 200 (2003).

JUDGMENT VACATED; REMANDED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.