CUMBEE v. DAVIS (2018)

Keith Stuart Cumbee, Texas prisoner # 1699482, moves this court for a certificate of appealability (COA) to challenge the denial of a motion he filed pursuant to Federal Rule of Civil Procedure 60 that sought to set aside state court criminal judgments adjudicating him guilty of aggravated assault causing serious bodily injury with a deadly weapon and possession of marijuana and to challenge the denial of his motion to stay proceedings pending a decision on his Rule 60 motion. Cumbee filed those motions while his 28 U.S.C. § 2254 application was pending and noticed his appeal from the denial of those motions before final judgment was entered. Judgment has now entered, and Cumbee has noticed his appeal therefrom.

“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). We have jurisdiction over final decisions and other decisions covered by the collateral order doctrine. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009); 28 U.S.C. §§ 1291, 1292. The decision denying Cumbee’s Rule 60 motion and his motion for a stay qualifies as neither type of decision. Moreover, Cumbee’s premature notice of appeal was not rendered effective upon the entry of final judgment. See Green Tree Servicing L.L.C. v. House, 890 F.3d 493, 500-012018 WL 2204161 *5 (5th Cir. 2018); United States v. Cooper, 135 F.3d 960, 962-63 (5th Cir. 1998). Thus, we lack jurisdiction over this appeal. See id.

Accordingly, this appeal is DISMISSED for lack of jurisdiction. Cumbee’s motions for a COA and for permission to proceed in forma pauperis on appeal are DENIED as moot.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.