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Jimmy Moore v. William Stephens, Director ( 2015 )


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  •      Case: 14-11345      Document: 00513247167         Page: 1    Date Filed: 10/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-11345                        October 26, 2015
Lyle W. Cayce
JIMMY RAY MOORE,                                                                Clerk
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:13-CV-46
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jimmy Ray Moore seeks a certificate of appealability (COA) to appeal
the dismissal of his motion to alter or amend a final judgment granting him
habeas relief from the respondent’s 2013 disciplinary action against him. See
28 U.S.C. § 2254; FED. R. CIV. P. 59(e). By his motion to alter or amend, Moore
seeks to have the district court order the respondent to vacate a 2014
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11345     Document: 00513247167   Page: 2   Date Filed: 10/26/2015
No. 14-11345
disciplinary proceeding against Moore that arose from the same incident as did
the 2013 proceeding.
Moore may not appeal the denial of his motion to alter or amend unless
he obtains a COA. See 28 U.S.C. § 2253(c)(1)(B); see also Cardenas v. Thaler,
    651 F.3d 442
    , 443 (5th Cir. 2011); Ochoa Canales v. Quarterman,
    507 F.3d 884
    ,
887-88 (5th Cir. 2007). The district court did not determine whether Moore
was entitled to a COA. Because of the lack of a COA ruling by the district
court, we assume without deciding that we lack jurisdiction over this appeal.
See Rule 11(A), RULES GOVERNING § 2254 PROCEEDINGS. We can discern no
“legal points arguable on their merits” in connection with Moore’s implicit
proposition that the district court may amend its final judgment to relieve him
from a discrete disciplinary charge that was not the subject of his § 2254
petition and that has yet to be presented to the state courts. Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983) (internal quotation marks and citations
omitted); see 42 U.S.C. § 1997e(a). This appeal is thus patently frivolous. See
    Howard, 707 F.2d at 220
    .
We decline to remand in order for the district court to make the COA
determination in the first instance, as remand would be futile and a waste of
judicial resources. See United States v. Alvarez,
    210 F.3d 309
    , 310 (5th Cir.
2000).   Because his appeal is baseless, no jurist of reason would debate
whether, or agree that, Moore should be encouraged to proceed further with it.
See Slack v. McDaniel,
    529 U.S. 473
    , 484 (2000).
The appeal is DISMISSED for lack of jurisdiction. Moore’s motions for a
COA and for appointment of counsel are DENIED as moot.
2