Mark Savoy v. Howard Prince, Warden
UNPUBLISHED OPINION ORDER FILED. [16-31121 Dismissed for Lack of Jurisdiction] Judge: EGJ , Judge: JES , Judge: CH; denying motion to appoint counsel filed by Appellant Mr. Mark James Savoy [8384051-2]; denying as moot motion for certificate of appealability filed by Appellant Mr. Mark James Savoy [8369076-2] [16-31121]
Date Filed: 07/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 14, 2017
Lyle W. Cayce
MARK JAMES SAVOY,
HOWARD PRINCE, Warden, Elayn Hunt Correctional Center,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:15-CV-398
Before JOLLY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Mark Savoy, Louisiana prisoner # 580262, moves for a certificate of
appealability (“COA”) to appeal the denial of his petition under 28 U.S.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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/14/2017
§ 2254. Savoy claims that he received ineffective assistance of counsel at trial
and on appeal. He also moves for appointment of counsel. To obtain a COA,
Savoy must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
Savoy’s notice of appeal was filed more than 30 days from the entry of
the final judgment denying his § 2254 petition; therefore, it is untimely.
See FED. R. APP. P. 4(a)(1)(A). Though Savoy’s notice of appeal was filed within
the period for seeking an extension under Federal Rule of Appellate Procedure
4(a)(5)(A)(i), he neither styled the notice as a motion for extension of time nor
requested such an extension in the body of the notice.
Savoy’s post-judgment motion asking the district court to reconsider the
denial of his motion for a COA did not toll the period for filing a timely notice
of appeal. See Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 263, n.7
(1978). It also did not render his previously filed notice of appeal dormant until
the district court entered its order disposing of the Federal Rule of Civil Procedure 60(b) motion. See FED. R. APP. P. 4(a)(4)(B)(i). Because the notice of
appeal was untimely, we lack jurisdiction to address the motion for a COA.
Accordingly, the appeal is DISMISSED for want of jurisdiction, the
request for a COA is DENIED as MOOT, and the motion for appointment of
counsel is DENIED.
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