Mount v. Lumpkin ( 2022 )

Case: 20-20176 Document: 00516271935 Page: 1 Date Filed: 04/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 7, 2022
No. 20-20176 Lyle W. Cayce
Summary Calendar Clerk
Gary Lee Mount,
Petitioner—Appellant,
versus
Bobby Lumpkin, 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. 4:19-CV-3310
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Gary Lee Mount, Texas prisoner # 1969963, appeals the denial of
several pro se motions in a proceeding that has been construed by the district
court under 28 U.S.C. § 2254. Because a final judgment has not been issued
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20176 Document: 00516271935 Page: 2 Date Filed: 04/07/2022
No. 20-20176
in the case, we must consider this court’s jurisdiction. See Martin v.
Halliburton, 618 F.3d 476, 481 (5th Cir. 2010); Mosley v. Cozby, 813 F.2d 659,
660 (5th Cir. 1987). The orders appealed are not specified in 28 U.S.C.
§ 1292(a) and have not been certified for appeal; therefore, we address
whether they fall within that “small class of orders” deemed final under the
collateral order doctrine. See Dardar v. Lafourche Realty Co., 849 F.2d 955,
957-58 (5th Cir. 1988).
Applying the doctrine, we have declined to immediately review an
order denying appointment of counsel in a § 2254 proceeding. Thomas v.
Scott, 47 F.3d 713, 715 (5th Cir. 1995). Immediate review of pretrial discovery
orders is generally denied as well. Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 108 (2009). We further conclude that the doctrine does not apply to an
order denying an evidentiary hearing in a § 2254 proceeding because it is not
effectively unreviewable on appeal from the final judgment. See id. at 107-09;
United States v. Davis, 971 F.3d 524, 534-35 (5th Cir. 2020), cert. denied, 142
S. Ct. 122 (2021). Nor does it apply to the order denying Mount’s attempts
to compel an answer from the respondent and a decision on his § 2254
application because that order, on its face, is not conclusive. See Swint v.
Chambers Cty. Comm’n, 514 U.S. 35, 42 (1995); Mohawk Indus., 558 U.S. at
106. Finally, without a viable appeal to pursue, Mount’s challenge to the
order denying leave to proceed in forma pauperis on appeal is moot.
Accordingly, the interlocutory appeal is DISMISSED. The motions
for leave to proceed in forma pauperis and appointment of counsel are
DENIED.
2