United States v. Donald West ( 2020 )

Case: 18-11594 Document: 00515355914 Page: 1 Date Filed: 03/23/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-11594 March 23, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DONALD JOSEPH WEST,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:16-CV-76
Before DENNIS, WILLETT, and DUNCAN, Circuit Judges.
PER CURIAM: *
Donald Joseph West was convicted of aggravated bank robbery, using
and carrying a firearm during and in relation to a crime of violence, and being
a felon in possession of a firearm. He was sentenced to 420 months of
imprisonment. West seeks a certificate of appealability (COA) regarding the
denial of a successive 28 U.S.C. § 2255 petition. We will deny the COA and
impose sanctions against West.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-11594
We lack jurisdiction over an untimely appeal from the denial of a § 2255
petition. United States v. Olson, 789 F. App’x 490, 491 (5th Cir. 2020) (citing
inter alia United States v. McDaniels, 907 F.3d 366, 369 (5th Cir. 2018)). Here,
the district court denied West’s § 2255 petition on August 29, 2018. West’s
notice of appeal was signed on November 29, 2018, well outside the 60-day
period for appealing the denial. See 28 U.S.C. § 2107(b); Fed. R. App. P.
4(a)(1)(B)(i). West had previously filed a motion to amend or correct the district
court’s order, but because that motion was signed on October 2, 2018, it did not
extend the time to file a notice of appeal. See Fed. R. App. P. 4(a)(4)(A); Fed. R.
Civ. P. 59(e) (such a motion must be filed within twenty-eight days of
judgment). We therefore lack jurisdiction over the district court’s denial of
West’s § 2255 petition, such that a COA to appeal that denial is inappropriate.
West appears also to appeal the district court’s denial of an evidentiary
hearing to support his claims, which was entered on November 19, 2018.
Although an appeal from the denial of an evidentiary hearing does not require
a COA, see Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), here, the
district court lacked jurisdiction to entertain West’s request because it was
redundant to previous requests. See United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000). Indeed, we have twice noted that West’s identical, previous
requests were redundant. We will therefore dismiss West’s appeal of the denial
of an evidentiary hearing.
The COA is therefore DENIED. The appeal from the district court’s
denial of an evidentiary hearing is DISMISSED. West’s motion to proceed
IFP is DENIED as unnecessary. All other accompanying motions are DENIED.
Almost a year ago, we warned West that he would be sanctioned for “any
further attempts to challenge [his] conviction and sentence that do not meet
the criteria for filing a successive § 2255 motion.” In re: Donald Joseph West,
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No. 18-11594
No. 19-10029 (5th Cir. Mar. 19, 2019). We ordered West to “review all pending
matters and move to dismiss any that are frivolous, repetitive, or otherwise
abusive.” Id. Two months later, after West failed to adhere to our order, we
ordered him to pay $100 as a sanction and directed that “[u]ntil that sanction
is paid, West may file no more appeals or initial pleadings challenging the
validity of his conviction and sentence, whether those challenges are governed
by § 2255 or any other statutory provision, in this court or in any court under
this court’s jurisdiction, without first obtaining the permission of this court or
the forum court.” In re: Donald Joseph West, No. 19-10491 (5th Cir. May 22,
2019). We further warned West that “future frivolous, repetitive, or otherwise
abusive filings in this court or any court subject to this court’s jurisdiction will
subject him to additional and progressively more severe sanctions.” Id. And we
again ordered West to “review all pending matters and move to dismiss any
that are frivolous, repetitive, or otherwise abusive to avoid additional
sanctions.” Id.
Court records reflect West has not fulfilled payment of his previous $100
sanction and that in addition to this matter, on August 7, 2019, well after our
imposition of sanctions, West moved for yet another COA in yet another action.
We will therefore impose additional sanctions.
West is therefore ORDERED to pay $200 to the clerk of court in addition
to our previous $100 sanction. Until West fulfills both payments, he is
ENJOINED from making any filings pertaining to any post-conviction relief in
this court or any court under our jurisdiction. After his payments are fulfilled,
West is PERMANENTLY ENJOINED from making any additional filings
pertaining to any post-conviction relief in this court or any court under our
jurisdiction without first receiving permission from the forum court.
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West is further ORDERED to dismiss any additional filings pertaining
to any post-conviction relief in this court or any court under our jurisdiction
within thirty days of entry of this order.
West is yet again WARNED that future frivolous, repetitive, or
otherwise abusive filings in this court or any court under our jurisdiction will
subject him to additional and progressively more severe sanctions.
West is finally WARNED that violations of this court’s or the district
court’s orders, including violations of this order, may result in prosecution for
civil or criminal contempt. See 18 U.S.C. § 401.
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