Roux v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 20, 1998
• Docket: 98-30175
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30175 Conference Calendar

JEAN ALLEN ROUX,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-618 - - - - - - - - - - August 18, 1998 Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Jean Allen Roux, #109227, requests that this court grant him

a certificate of appealability (COA) from the denial of his 28

U.S.C. § 2254 petition. Because Roux filed his § 2254 petition

in March 1997, the COA requirement of the Antiterrorism and

Effective Death Penalty Act applies to his case. Green v.

Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). A COA may be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-30175 -2-

issued only if the prisoner has made a "substantial showing of

the denial of a constitutional right." § 2253(c)(2).

This court must examine the basis of its jurisdiction, on

its own motion, if necessary. Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987). A timely notice of appeal is a prerequisite for

the exercise of jurisdiction by this court. United States v.

Carr, 979 F.2d 51, 55 (5th Cir. 1992). Rule 4(a)(1), FED. R. APP.

P., requires that the notice of appeal in a civil action be filed

within 30 days of entry of the judgment or order from which

appeal is taken.

A prisoner's pro se notice of appeal is deemed filed when

delivered to the prison authorities for mailing to the court

clerk. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266

(1988). "Timely filing may be shown by a notarized statement or

by a declaration [under penalty of perjury] setting forth the

date of deposit and stating that first-class postage has been

prepaid." Fed. R. App. P. 4(c). Roux’s notice of appeal

contained no notarized statement or declaration under penalty of

perjury setting forth the date it was submitted for mailing and

that first-class postage had been prepaid as required by Fed.

R. App. P. 4(c). Because it cannot be determined from the record

when Roux delivered the notice of appeal to prison authorities,

the case is REMANDED to the district court to make such a

determination. See Thompson v. Montgomery, 853 F.2d 287, 288

(5th Cir. 1988). The court should make the determination No. 98-30175 -3-

promptly and return the case to this court for dismissal or

further processing, as may be appropriate.

REMANDED.