Byron Davis v. Darrel Vannoy, Warden


UNPUBLISHED OPINION ORDER FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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