Jesse Herrera v. Brian Smith ( 2019 )

Case: 18-41164 Document: 00515097965 Page: 1 Date Filed: 08/29/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-41164 FILED
Summary Calendar August 29, 2019
Lyle W. Cayce
Clerk
JESSE HERRERA,
Petitioner-Appellant
v.
BRIAN SMITH; ANTONIO ANINAO,
Respondents-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:18-CV-21
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Jesse Herrera, Texas prisoner # 684864, is serving a 45-year sentence
for a 1994 murder conviction. He appeals the dismissal of his petition under
28 U.S.C. § 2241, in which he challenged the result of his prior 28 U.S.C. § 2254
proceeding. The district court construed the petition as a successive and
unauthorized § 2254 petition.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-41164 Document: 00515097965 Page: 2 Date Filed: 08/29/2019
No. 18-41164
A threshold question is whether a state prisoner is required to obtain a
certificate of appealability (COA) before appealing the dismissal of a habeas
petition purportedly brought under § 2241. In this case, Herrera is required
to obtain a COA because he is challenging a “final order in a habeas corpus
proceeding in which the detention complained of arises out of process issued
by a State court.” § 2253(c)(1)(A); see Stringer v. Williams, 161 F.3d 259, 262
(5th Cir. 1998). However, we have no jurisdiction to grant or deny a COA
where the district court did not deny or grant a COA. See Black v. Davis, 902
F.3d 541, 545 (5th Cir. 2018).
Accordingly, this appeal is HELD IN ABEYANCE and the case is
REMANDED for the limited purpose of allowing the district court to consider
whether Herrera should be granted a COA from the dismissal of his § 2241
petition. Herrera’s motion to supplement the record is carried with the case.
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