Byron Davis v. Darrel Vannoy, Warden

Filing

UNPUBLISHED OPINION ORDER FILED. [16-30530 Dismissed for Lack of Jurisdiction] Judge: JLD , Judge: LHS , Judge: SAH; denying as moot motion for certificate of appealability filed by Appellant Mr. Byron Davis [8344883-2] [16-30530]

Case: 16-30530

Document: 00514202962

Page: 1

Date Filed: 10/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30530

United States Court of Appeals
Fifth Circuit

FILED
October 19, 2017

BYRON DAVIS,

Lyle W. Cayce
Clerk

Petitioner-Appellant
v.
DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CV-1508
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Byron Davis, Louisiana prisoner # 570235, moves this court for a
certificate of appealability (COA) to appeal in this 28 U.S.C. § 2254 proceeding.
He was convicted of the aggravated rape of a minor victim, and he was
sentenced to life in prison at hard labor without the benefit of parole,
probation, or suspension of sentence.
“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). This court
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30530

Document: 00514202962

Page: 2

Date Filed: 10/19/2017

No. 16-30530
has jurisdiction over final decisions and other decisions covered by the
collateral order doctrine. See 28 U.S.C. §§ 1291, 1292; Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 103, 106, 116 (2009). In this case, the order adopting
the magistrate judge’s report and recommendation, the final judgment
dismissing Davis’s § 2254 petition, and the district court’s order denying Davis
a COA were all vacated. Neither the final judgment nor the other two orders
were ever reinstated, and Davis’s petition was not dismissed anew.
Absent the entry of a final judgment, we lack jurisdiction over this
appeal. See § 1291. Moreover, due to the lack of an order denying a COA, we
assume without deciding that we lack jurisdiction over this appeal pursuant to
Rule 11(a) of the Rules Governing § 2254 Cases, which has language similar to
former Rule 22 of the Federal Rules of Appellate Procedure. See Cardenas v.
Thaler, 651 F.3d 442, 444-45 & n.1 (5th Cir. 2011).
Accordingly, this appeal is DISMISSED for lack of jurisdiction, and
Davis’s motion for a COA is DENIED as moot.

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