USA v. Rafael Flore

Filing

UNPUBLISHED OPINION ORDER FILED. [13-11240 Dismissed for Lack of Jurisdiction] Judge: JLD , Judge: LHS , Judge: CH; denying motion for oral argument filed by Appellant Mr. Rafael Alberto Flores [7589047-2]; denying motion for certificate of appealability filed by Appellant Mr. Rafael Alberto Flores [7589038-2]; denying motion to appoint counsel filed by Appellant Mr. Rafael Alberto Flores [7541659-2] [13-11240]

Case: 13-11240

Document: 00512715712

Page: 1

Date Filed: 07/29/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11240

United States Court of Appeals
Fifth Circuit

FILED
July 29, 2014

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff-Appellee
v.
RAFAEL ALBERTO FLORES, also known as Rafa,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-2410
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Rafael Alberto Flores, federal prisoner # 26574-064, moves for a
certificate of appealability (COA) to appeal the magistrate judge’s order
denying his motion for appointment of counsel. We generally lack jurisdiction
to consider an appeal absent a final order of the district court. 28 U.S.C. § 1291;
see Goodman v. Harris Cnty., 443 F.3d 464, 467 (5th Cir.2006). In the context
of a habeas proceeding, our jurisdiction to grant or deny a COA likewise is
predicated on a final order of the district court. See 28 U.S.C. § 2253(a), (c).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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“Only a district court can make a magistrate judge’s decision final, and
therefore appealable.” Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208,
219-20 (5th Cir. 2000). Although the district court here denied a COA, it did
not enter a final order addressing Flores’s self-styled motion for appointment
of counsel. Accordingly, we lack jurisdiction to review the magistrate judge’s
order.
Additionally, Flores seeks a COA to appeal the district court’s orders
denying his motions to compel and for a temporary stay. Because the order
denying the motion to compel was not designated in the notice of appeal, we
lack jurisdiction to review it. See FED. R. APP. P. 3(c)(1)(B); Gonzalez v. Thaler,
132 S. Ct. 641, 651-52 (2012). We also lack jurisdiction to review the district
court’s denial of Flores’s motion for a temporary stay, as the notice of appeal
was filed 61 days after entry of the district court’s order.

See 28 U.S.C.

§ 2107(b)(1), (c); Bowles v. Russell, 551 U.S. 205, 210-14 (2007).
For these reasons, Flores’s motion for a COA is DENIED, and the appeal
is DISMISSED for lack of jurisdiction. The motions for appointment of counsel
and oral argument also are DENIED. This court previously warned Flores
that submitting frivolous or repetitive filings challenging his conviction and/or
sentence would subject him to sanctions. We directed him to “review any
pending appeals and actions and move to dismiss any that are frivolous,
repetitive, or otherwise abusive.” Because Flores did not heed this warning, a
monetary SANCTION of $100 payable to the clerk of this court is IMPOSED.
IT IS FURTHER ORDERED that Flores is BARRED from filing in this court
or any court subject to this court’s jurisdiction any pleadings that challenge his
conviction for conspiracy to distribute and possess with intent to distribute a
controlled substance until the sanction is paid in full, unless he first obtains
leave of the court in which he seeks to file his pleadings. Flores is WARNED

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that any future frivolous or repetitive filings in this court or any court subject
to this court’s jurisdiction will subject him to additional sanctions. He should
review any pending matters and move to dismiss any that are frivolous.

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