Herbert Butler v. Darrel Vannoy, Warden

Filing

UNPUBLISHED OPINION ORDER FILED. [16-30312 Dismissed ] Judge: EHJ , Judge: JES , Judge: JLD Mandate pull date is 05/04/2017; denying motion to proceed IFP filed by Appellant Mr. Herbert Butler [8220071-2]; denying motion for certificate of appealability filed by Appellant Mr. Herbert Butler [8220051-2] [16-30312]

Case: 16-30312

Document: 00513952104

Page: 1

Date Filed: 04/13/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30312

United States Court of Appeals
Fifth Circuit

FILED
April 13, 2017
Lyle W. Cayce
Clerk

HERBERT BUTLER,
Petitioner–Appellant,
versus
DARREL VANNOY, Warden, Louisiana State Penitentiary,
Respondent–Appellee.

Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:98-CV-184

Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Herbert Butler, Louisiana prisoner # 124959, was convicted of second-

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30312

Document: 00513952104

Page: 2

Date Filed: 04/13/2017

No. 16-30312
degree murder and sentenced to imprisonment for life. He moves for a certificate of appealability (“COA”) and for leave to proceed in forma pauperis (“IFP”)
to challenge the denial of his motion for permission to file a Federal Rule of
Civil Procedure 60(b)(6) motion. That proposed motion sought to challenge a
state appellate court’s finding that Butler had failed to preserve a particular
issue for review on direct appeal.
Because the proposed motion does not address any aspect of the denial
of Butler’s 28 U.S.C. § 2254 application, it raises new claims, so it is a successive Section 2254 application. See Gonzalez v. Crosby, 545 U.S. 524, 532–33
(2005). Because Butler did not have this court’s permission to file a second or
successive application, the district court did not have jurisdiction to consider
it. See In re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013). Therefore, the
appeal is DISMISSED. See United States v. Key, 205 F.3d 773, 774–75 (5th
Cir. 2000).
To the extent that Butler is required to obtain a COA, his request is
DENIED, because he has not made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
484 (2000). Accordingly, his motion for leave to proceed IFP on appeal also is
DENIED.

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