McKinley Thomas v. Lorie Davis, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [16-20597 Affirmed in Part and Dismissed in Part for Lack of Jurisdiction 16-20769 Affirmed in Part and Dismissed in Part for Lack of Jurisdiction] Judge: ECP , Judge: JWE , Judge: JEG Mandate issue date is 12/06/2017; denying motion for certificate of appealability filed by Appellant Mr. McKinley Dale Thomas [8401040-2] [16-20597, 16-20769]

Case: 16-20597

Document: 00514236858

Page: 1

Date Filed: 11/14/2017

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

No. 16-20597
c/w No. 16-20769
Summary Calendar

FILED
November 14, 2017
Lyle W. Cayce
Clerk

MCKINLEY DALE THOMAS,
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR TEXAS DEPARTMENT
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

OF CRIMINAL

Respondent-Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-3566
USDC No. 4:15-CV-1947
Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
McKinley Dale Thomas, Texas prisoner # 1484717, moves this court for
a certificate of appealability (COA) to appeal the district court’s August 27,
2015 dismissal of his 28 U.S.C. § 2254 application for failure to pay a filing fee.
Thomas also moves this court for a COA to appeal the district court’s August

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20597

Document: 00514236858

Page: 2

Date Filed: 11/14/2017

No. 16-20597
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4, 2016 dismissal of his 28 U.S.C. § 2254 application as time barred. Thomas
filed the applications to challenge his life sentence for murder. His motion to
consolidate his cases on appeal was granted.
Thomas contends that the district court abused its discretion in
dismissing his § 2254 application on August 27, 2015, because he never
received the district court’s order requiring him to pay a filing fee. As to the
district court’s August 4, 2016 order dismissing his § 2254 application as
untimely, Thomas contends that he is entitled to equitable tolling of the time
limitations period. Thomas further contends that the district court abused its
discretion in denying his motions for appointment of counsel and for recusal
and in dismissing his § 2254 application on August 4, 2016 as untimely without
conducting an evidentiary hearing.
A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Where, as here, the district court’s denial
of federal habeas relief is based on procedural grounds, this court will issue a
COA “when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
On January 5, 2016, Thomas voluntarily withdrew his appeal of the
court’s August 27, 2015 decision dismissing his § 2254 application for failure
to pay the required filing fee. Thus, that judgment is not properly before this
court. To the extent that Thomas challenges the district court’s August 23,
2016 judgment denying his Federal Rule of Civil Procedure 60(b) motion, we
do not have jurisdiction to review the matter since Thomas failed to file a

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Case: 16-20597

Document: 00514236858

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Date Filed: 11/14/2017

No. 16-20597
c/w No. 16-20769
timely notice of appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007); FED.
R. APP. P. 4(A)(1)(A).

Accordingly, these claims are dismissed for lack of

jurisdiction and a COA is denied as moot. As to Thomas’s remaining claims,
his request for a COA is denied as he fails to make the requisite showing. See
Slack, 529 U.S. at 484.
Accordingly, IT IS ORDERED that Thomas’s appeal is DISMISSED in
part for lack of jurisdiction, and his motions for a COA are DENIED.

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