Anthony Bailey v. Burl Cain

Filing

UNPUBLISHED OPINION FILED. [10-30958 Dismissed for Lack of Jurisdiction] Judge: JLW , Judge: CES , Judge: CH Mandate pull date is 11/04/2011 [10-30958]

Case: 10-30958

Document: 00511633259

Page: 1

Date Filed: 10/14/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 10-30958
Summary Calendar

October 14, 2011
Lyle W. Cayce
Clerk

ANTHONY G. BAILEY,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-70

Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Anthony G. Bailey, Louisiana prisoner # 297843, filed
a petition pursuant to 28 U.S.C. § 2254, challenging his jury trial conviction of
attempted second degree murder in state court. Bailey now appeals the district
court’s order directing the clerk to return a pleading unfiled, following its
September 17, 2008 dismissal as time barred. Bailey contends that the district
court unconstitutionally denied his access to the courts and also erred in not

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30958

Document: 00511633259

Page: 2

Date Filed: 10/14/2011

No. 10-30958
applying the principles espoused in Jimenez v. Quarterman, 555 U.S. 113 (2009),
to equitably toll his limitations period.
We must examine the basis of our jurisdiction on our own motion if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). The district
court’s order instructing the clerk to return Bailey’s motion unfiled is not a final
appealable order because Bailey did not seek “approval of a judicial officer” as
contemplated by Middle District of Louisiana General Order Number 2006-07.
Neither has the district court’s order been expressly certified by the district court
as final under Federal Rule of Civil Procedure 54(b), nor is it an appealable
interlocutory order or appealable under the collateral order doctrine. See Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); Briargrove Shopping
Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 538 (5th Cir. 1999);
Thompson v. Drewry, 138 F.3d 984, 985-86 (5th Cir. 1998). We therefore do not
have jurisdiction to consider Bailey’s appeal of that order. In so ruling, we do
not reach the merits of the argument that Middle District of Louisiana General
Order Number 2006-07 is unconstitutional or otherwise improper.
Accordingly, Bailey’s appeal is DISMISSED for lack of jurisdiction.

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