Jose Guerrero-Yanez v. Lorie Davis, Director ( 2020 )

Case: 19-50507 Document: 00515377936 Page: 1 Date Filed: 04/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 19-50507 April 9, 2020
Lyle W. Cayce
Clerk
JOSE ANTONIO GUERRERO-YANEZ,
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-273
Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
A jury convicted Jose Antonio Guerrero-Yanez, Texas prisoner
# 1926789, of multiple sexual crimes and sentenced him to life in prison. He
requests a certificate of appealability (COA) to appeal the district court's
dismissal of his 28 U.S.C. § 2254 petition as time-barred.
This court must consider its jurisdiction sua sponte when necessary.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). The filing of a timely “notice
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50507 Document: 00515377936 Page: 2 Date Filed: 04/09/2020
No. 19-50507
of appeal in a civil case is a jurisdictional requirement,” and an appeal that has
not been made within statutory time limits must be dismissed for lack of
jurisdiction. Bowles v. Russell, 551 U.S. 205, 213-14 (2007). Proceedings under
§ 2254 are civil. See Hernandez v. Thaler, 630 F.3d 420, 424 (5th Cir. 2011).
Where, as here, the United States is not party, the notice of appeal in a civil
case must be filed within 30 days after the entry of the judgment or order being
appealed. FED. R. APP. P. 4(a)(1)(A).
Guerrero-Yanez filed his notice of appeal more than 100 days after the
dismissal of the § 2254 petition and at least 60 days after the denial of his
motion for reconsideration, which is construed as a motion under Federal Rule
of Civil Procedure 60(b). Because the notice of appeal is untimely as to any
district court order, the appeal is DISMISSED for lack of jurisdiction, and the
COA motion is DENIED as moot. See Bowles, 551 U.S. at 213.
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