Powell v. Lumpkin

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 9, 2024
• Docket: 24-10702
• Status: Unpublished

Opinion

Case: 24-10702 Document: 49-1 Page: 1 Date Filed: 12/09/2024

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

No. 24-10702 FILED December 9, 2024 ____________ Lyle W. Cayce Michael A. Powell, Clerk

Petitioner—Appellant,

versus

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

Respondents—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:24-CV-614 ______________________________

Before Jones, Duncan, and Douglas, Circuit Judges. Per Curiam: * Michael A. Powell, Texas prisoner # 01342523, commenced the underlying action by filing a self-described motion under Federal Rule of Civil Procedure 60(b), seeking to have the district court, inter alia, set aside an order issued by the Texas Court of Criminal Appeals denying him postconviction relief. The district court entered an order construing

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-10702 Document: 49-1 Page: 2 Date Filed: 12/09/2024

No. 24-10702

Powell’s pleading as a 28 U.S.C. § 2254 application and requiring that he “file his [application] on the proper form.” Powell filed a notice of appeal from that order and now moves for leave to proceed in forma pauperis (IFP) on appeal. He has also filed a motion for leave to file a supplemental brief. This court must consider whether it has jurisdiction to review the merits of an appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We have jurisdiction to review (1) final decisions under 28 U.S.C. § 1291, (2) certain interlocutory decisions under 28 U.S.C. § 1292(a); and (3) interlocutory orders certified as final under Federal Rule of Civil Procedure 54(b) or as appealable under § 1292(b). United States v. Powell, 468 F.3d 862, 863 (5th Cir. 2006); see Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 538-39 (5th Cir. 1999). We may also review certain decisions under the collateral order doctrine. See Martin v. Halliburton, 618 F.3d 476, 481-82 (5th Cir. 2010). The district court’s order at issue here is not a final decision, nor does it fall within any of the other categories of appealable orders. Accordingly, Powell’s motion to proceed IFP is DENIED, and his appeal is DISMISSED for lack of jurisdiction. See Briargrove, 170 F.3d at 538-39. The motion for leave to file a supplemental brief is DENIED as moot.