Norman Crittenden v. Rick Thaler, Director , 350 F. App'x 950 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2009
No. 09-20064
Summary Calendar Charles R. Fulbruge III
Clerk
NORMAN CRITTENDEN
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-3940
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Norman Crittenden, Texas prisoner # 499806, moves for a certificate of
appealability (COA) to appeal from the district court’s order denying him habeas
corpus relief, pursuant to 28 U.S.C. § 2254. Crittenden challenges the use of an
Illinois conviction to enhance the sentence for his 1993 Texas conviction of
possession of a deadly weapon in a penal institution.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20064
A COA may be issued only if the applicant has “made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). However,
Crittenden’s COA motion is denied because this court lacks jurisdiction to
consider it. The latest date on which Crittenden could have filed a timely notice
of appeal was January 16, 2009, 30 days from the district court’s December 17,
2008, order denying Crittenden’s first postjudgment motion for relief. See F ED.
R. A PP. P. 4(a)(1), (a)(4)(A)(iv). Crittenden’s second postjudgment motion had no
tolling effect on the period for filing a timely notice of appeal. See Charles L.M.
v. Northeast Indep. Sch. Dist., 884 F.2d 869, 870 (5th Cir. 1989). Crittenden’s
January 26, 2009, notice of appeal was untimely, and this court lacks
jurisdiction to address his COA motion.
COA DENIED. APPEAL DISMISSED. MOTION FOR APPOINTMENT
OF COUNSEL DENIED.
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