Ronald Schofield v. Lorie Davis, Director

Fifth Circuit

Ronald Schofield v. Lorie Davis, Director

669 F. App'x 223

CourtCourt of Appeals for the Fifth Circuit

DecidedSeptember 30, 2016

Docket15-40331

StatusUnpublished

This text of 669 F. App'x 223 (Ronald Schofield v. Lorie Davis, Director) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ronald Schofield v. Lorie Davis, Director, 669 F. App'x 223 (5th Cir. 2016).

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Opinion

PER CURIAM: *

Ronald Wayne Schofield, Texas prisoner # 1434055, was convicted of failing to register as a sex offender and was sentenced to serve 11 years in prison. His 28 U.S.C. § 2254 habeas corpus petition was dismissed as untimely. Now, he moves this court for a certificate of appealability (COA) concerning the denial of several postjudgment motions filed with respect to the dismissal of his § 2254 petition and for appointed counsel. His motion for counsel is DENIED.

We should always be mindful of our jurisdiction and consider this issue sua sponte when needed. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Because federal habeas proceedings are civil in nature, see Archer v. Lynaugh, 821 F.2d 1094, 1096 (5th Cir. 1987), a timely notice of appeal is a jurisdictional requirement, Bowles v. Russell, 551 U.S. 205, 214, 127 act. 2360, 168 L.Ed.2d 96 (2007). The notice of appeal in a civil action must be filed within 30 days of entry of the judgment or order from which the appeal is taken. Fed. R. App. P. 4(a)(1)(A).

The notice of appeal from which this proceeding arises specifies that it pertains to seven different items but is not timely as to any of them. Consequently, insofar as Schofield seeks to appeal these items, his appeal is DISMISSED for want of jurisdiction, and his request for a COA on these items is DENIED as moot. See Bowles, 551 U.S. at 214, 127 S.Ct. 2360.

Schofield’s notice of appeal is timely filed as to the district court’s April 2015 order. Nonetheless, he is not entitled to relief as to this .judgment. The district court has not ruled on the issue whether *224 Schofield should receive a COA as to this judgment. Because the district court has not made a COA ruling, we assume without deciding that we lack jurisdiction over this appeal. See Rule 11(a), Rules-Governing § 2255 Proceedings; Cardenas v. Thaler, 651 F.3d 442, 443-44 & n. 2 (5th Cir. 2011). We decline to remand to the district court for a COA ruling because a remand would be futile. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Rather, we DISMISS for want of jurisdiction. See id.

In his filings with this court, Schofield has not presented any argument relative to the issue whether the judgment over which we have jurisdiction is erroneous. Accordingly, he has waived this issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). His request for a COA with regards to the district court’s April 2015 order is DENIED as moot.

*

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,

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PER CURIAM: *

Ronald Wayne Schofield, Texas prisoner # 1434055, was convicted of failing to register as a sex offender and was sentenced to serve 11 years in prison. His 28 U.S.C. § 2254 habeas corpus petition was dismissed as untimely. Now, he moves this court for a certificate of appealability (COA) concerning the denial of several postjudgment motions filed with respect to the dismissal of his § 2254 petition and for appointed counsel. His motion for counsel is DENIED.

We should always be mindful of our jurisdiction and consider this issue sua sponte when needed. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Because federal habeas proceedings are civil in nature, see Archer v. Lynaugh, 821 F.2d 1094, 1096 (5th Cir. 1987), a timely notice of appeal is a jurisdictional requirement, Bowles v. Russell, 551 U.S. 205, 214, 127 act. 2360, 168 L.Ed.2d 96 (2007). The notice of appeal in a civil action must be filed within 30 days of entry of the judgment or order from which the appeal is taken. Fed. R. App. P. 4(a)(1)(A).

The notice of appeal from which this proceeding arises specifies that it pertains to seven different items but is not timely as to any of them. Consequently, insofar as Schofield seeks to appeal these items, his appeal is DISMISSED for want of jurisdiction, and his request for a COA on these items is DENIED as moot. See Bowles, 551 U.S. at 214, 127 S.Ct. 2360.

Schofield’s notice of appeal is timely filed as to the district court’s April 2015 order. Nonetheless, he is not entitled to relief as to this .judgment. The district court has not ruled on the issue whether *224 Schofield should receive a COA as to this judgment. Because the district court has not made a COA ruling, we assume without deciding that we lack jurisdiction over this appeal. See Rule 11(a), Rules-Governing § 2255 Proceedings; Cardenas v. Thaler, 651 F.3d 442, 443-44 & n. 2 (5th Cir. 2011). We decline to remand to the district court for a COA ruling because a remand would be futile. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Rather, we DISMISS for want of jurisdiction. See id.

In his filings with this court, Schofield has not presented any argument relative to the issue whether the judgment over which we have jurisdiction is erroneous. Accordingly, he has waived this issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). His request for a COA with regards to the district court’s April 2015 order is DENIED as moot.

*

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,

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669 F. App'x 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-schofield-v-lorie-davis-director-ca5-2016.

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