Rickey Gipson v. Keith Deville, Warden

Opinion

Case: 17-30871 Document: 00514648973 Page: 1 Date Filed: 09/19/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 17-30871 September 19, 2018 Lyle W. Cayce

RICKEY WAYNE GIPSON, Clerk

Petitioner-Appellant

v.

KEITH DEVILLE, WARDEN, WINN CORRECTIONAL CENTER,

Respondent-Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:11-CV-1954

Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Rickey Wayne Gipson, Louisiana prisoner # 325027, moves for a certificate of appealability (COA) to appeal the district court’s denial of his Federal Rule of Civil Procedure 60(b) motion for reconsideration of the judgment denying his 28 U.S.C. § 2254 application challenging his conviction for attempted manslaughter. See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007). We must examine the basis of our jurisdiction, sua sponte, if necessary. United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Our

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 17-30871 Document: 00514648973 Page: 2 Date Filed: 09/19/2018

No. 17-30871

jurisdiction is predicated upon the valid jurisdiction of the district court. See id. The instant appeal is frivolous because Gipson’s Rule 60(b) motion, which challenged the district court’s rejection on the merits of his ineffective assistance claim and asserts that he was denied due process at his sentencing proceedings, was a successive § 2254 application. See Gonzalez v. Crosby, 545 U.S. 524, 530-33 (2005). Thus, the district court did not have jurisdiction to consider the motion without authorization from this court, which was neither sought nor given. See In re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013).

The appeal is DISMISSED for lack of jurisdiction, and Gipson’s motion for a COA is DENIED AS MOOT. Gipson’s motion to amend his COA brief is DENIED. Likewise, his motions for leave to view sealed documents in the district court and for production of those documents are DENIED.