Lewis v. Lumpkin

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Case: 20-40076     Document: 00515744657         Page: 1     Date Filed: 02/15/2021




              United States Court of Appeals
                   for the Fifth Circuit                       United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                               February 15, 2021
                                  No. 20-40076                   Lyle W. Cayce
                                Summary Calendar                      Clerk


   Aundri D. Lewis,

                                                           Petitioner—Appellant,

                                       versus

   Bobby Lumpkin, Director, Texas Department of Criminal Justice,
   Correctional Institutions Division,

                                                           Respondent—Appellee.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:08-CV-2710


   Before Jones, Costa, and Wilson, Circuit Judges.
   Per Curiam:*
          In 2005, Aundri D. Lewis, Texas prisoner # 1305555, was convicted
   of aggravated assault. He moves for a certificate of appealability (COA) in
   regard to his 28 U.S.C. § 2254 proceedings relating to that conviction.



          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40076      Document: 00515744657          Page: 2   Date Filed: 02/15/2021




                                    No. 20-40076


          “[W]e must consider the basis of our own jurisdiction, sua sponte if
   necessary.” Perez v. Stephens, 784 F.3d 276, 280 (5th Cir. 2015). A timely
   notice of appeal is a jurisdictional requirement for this appeal. See Bowles v.
   Russell, 551 U.S. 205, 214 (2007). Lewis’s notice of appeal was filed more
   than three months after the district court’s October 18, 2019 order denying
   his motions for a COA and leave to proceed in the district court in forma
   pauperis. The notice of appeal therefore is untimely as to that order. See
   28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). It also would be untimely
   with respect to the district court’s earlier judgment denying Lewis’s § 2254
   application in 2009. See § 2107(a); Fed. R. App. P. 4(a)(1)(A).
          Given the untimeliness of Lewis’s notice of appeal, we lack
   jurisdiction over this appeal. Accordingly, the appeal is DISMISSED for
   lack of jurisdiction, and Lewis’s motion for a COA is DENIED AS
   MOOT.




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