SHEPPARD v. DAVIS (2018)

Curtis Lee Sheppard, Jr., Texas prisoner # 1656666, seeks a certificate of appealability (COA) to appeal the district court’s denial of his motion for preliminary injunctive relief. His motion for injunctive relief was filed after the district court denied his 28 U.S.C. § 2254 petition which challenged a prison disciplinary case. This court has denied Sheppard a COA to appeal the denial of that § 2254 petition. See Sheppard v. Davis, No. 18-40026 (5th Cir. Sept. 7, 2018).

Under Rule 11(a) of the Rules Governing § 2254 Proceedings, “the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” In this case, the district court did not rule on whether a COA should issue in connection with Sheppard’s postjudgment motion for injunctive relief. Because the district court did not do so, we lack jurisdiction. See Black v. Davis, 902 F.3d 541, 544-45 (5th Cir. 2018); Cardenas v. Thaler, 651 F.3d 442, 443-44 (5th Cir. 2011).

Accordingly, we REMAND the case to the district court for further proceedings consistent with Rule 11(a).

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.