Alvin Mead v. Burl Cain, Warden , 438 F. App'x 340 ( 2011 )

Case: 10-30963 Document: 00511578801 Page: 1 Date Filed: 08/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2011
No. 10-30963
Summary Calendar Lyle W. Cayce
Clerk
ALVIN MEAD,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CV-3173
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Alvin Mead, Louisiana prisoner # 310779, appeals the denial of his second
28 U.S.C. § 2254 application challenging his conviction for possession of cocaine.
The district court denied the application as time barred but nevertheless granted
Mead a certificate of appealability on his claim of actual innocence.
If necessary, we must examine the basis of our jurisdiction sua sponte.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Mead’s second § 2254
application raised a claim of actual innocence that could have been raised in his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30963 Document: 00511578801 Page: 2 Date Filed: 08/22/2011
No. 10-30963
earlier application; therefore, the second application was successive. See Crone
v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
As a prisoner seeking to file a second or successive § 2254 application,
Mead was required to apply for leave from this court. 28 U.S.C. § 2244(b)(3)(A).
His failure to do so rendered his second application unauthorized, thus depriving
the district court of jurisdiction. See United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000). As such, we lack jurisdiction over this habeas appeal. See id. at 775.
The judgment of the district court is thus VACATED, and the appeal is
DISMISSED for lack of jurisdiction.
2