Cuellar v. Johnson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50653
Summary Calendar
CHRISTOPHER CUELLAR,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CV-1151
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February 24, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Cuellar seeks permission to proceed in forma
pauperis (IFP) on appeal from the district court’s denial of his
28 U.S.C. § 2254 petition. At the time that Cuellar could have
taken his appeal, notice of appeal was to be filed with the
district court clerk within 30 days of the entry of judgment or
order appealed from in a civil case. FED. R. APP. P. 4(a)(1)
*
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that this opinion should not be published and is not precedent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.
No. 98-50653
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(1997). If an appropriate motion is filed within 30 days after
that period has expired, the district court may extend the time
for filing a notice of appeal if it finds excusable neglect or
good cause. FED. R. APP. P. 4(a)(5). Unless a motion to extend
the time has been filed by the end of the second 30-day period,
the appeal must be dismissed, because timely filing of the notice
is a mandatory precondition to the exercise of appellate
jurisdiction. Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983);
Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir. 1981).
Documents that “clearly evince an intent to appeal” are
considered to be equivalent to a notice of appeal, e.g.,
applications for leave to appeal IFP. Stevens v. Heard, 674 F.2d
320, 322 (5th Cir. 1982).
Although a notice of appeal was filed in Cuellar’s case
within 30 days of the denial of his § 2254 petition, it was
signed on his behalf by an “Irene Hoey,” who does not appear to
be a licensed attorney in the state of Texas. “[T]he
Constitution of the United States, in particular the First and
Sixth Amendments, does not grant to [a litigant] the right to
have an unlicensed layman represent them in Court proceedings.”
Turner v. American Bar Ass’n, 407 F. Supp. 451, 478 (N.D. Tex.
1975), affirmed, sub nom. Pilla v. American Bar Ass’n, 542 F.2d
56 (8th Cir. 1976); see also Guajardo v. Luna, 432 F.2d 1324,
1325 (5th Cir. 1970). The notice of appeal was therefore
invalid.
Cuellar did file a notice to proceed IFP with the district
court; however, this filing was not within the 30-day period
No. 98-50653
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required by FED. R. APP. P. 4(a)(1). Although it was filed within
the 30-day grace permitted by Rule 4(a)(5), Cuellar did not file
a motion to extend the time for filing and did not make a showing
of good cause or excusable neglect. Although the district court
granted a partial COA as an alternative to this court’s finding
that the notice of appeal signed by Hoey was proper, the district
court did not find that excusable neglect or good cause for a
late-filed notice of appeal existed. Under the rule of this
circuit, there is no jurisdiction over the appeal and it must be
dismissed. See Mann v. Lynaugh, 840 F.2d 1194, 1196-1201.
APPEAL DISMISSED FOR LACK OF JURISDICTION.