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UNPUBLISHED OPINION ORDER FILED.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]

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Case: 16-31121 Document: 00514072911 Page: 1 Date Filed: 07/14/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-31121 United States Court of Appeals Fifth Circuit FILED July 14, 2017 Lyle W. Cayce Clerk MARK JAMES SAVOY, Petitioner–Appellant, versus HOWARD PRINCE, Warden, Elayn Hunt Correctional Center, Respondent–Appellee. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-31121 Document: 00514072911 Page: 2 Date Filed: 07/14/2017 No. 16-31121 § 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. 2

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