Johnson v. Whitley ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30814
Summary Calendar
HERMAN JOHNSON, JR.,
Petitioner-Appellant,
versus
JOHN P. WHITLEY, Warden,
Louisiana State Penitentiary;
RICHARD P. IEYOUB, Attorney General,
State of Louisiana,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 94-CV-3980-E
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December 19, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Herman Johnson, Jr., Louisiana state prisoner #121967,
appeals from the district court’s dismissal of his petition for
writ of habeas corpus. He has filed a motion with this court to
proceed in forma pauperis (IFP) on appeal. This court must examine the
basis of its jurisdiction on its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
*
Pursuant to Local 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-30814
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Cir. 1987). Johnson did not file a notice of appeal from the district court’s denial of his habeas
petition. Although he refiled his original § 2254 petition one year after the court’s judgment, his
habeas petition is ineffective to serve as a notice of appeal
because it did not “clearly evince an intent to appeal.” See id.
To the extent that any documents subsequently filed by Johnson evince an intent to appeal, they
are untimely as they were filed more than thirty days after the district court’s entry of final
judgment. See Fed. R. App. P. 4(a)(1). A timely notice of appeal is a prerequisite for the
exercise of jurisdiction by this court. United States v. Carr, 979 F.2d 51, 55 (5th Cir. 1992).
Because Johnson did not file a timely notice of appeal, this court lacks appellate jurisdiction.
Johnson’s motion for IFP is therefore DENIED as unnecessary and his appeal is DISMISSED.