Davis v. Lumpkin ( 2023 )

Case: 23-10693 Document: 00516897194 Page: 1 Date Filed: 09/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10693
Summary Calendar FILED
____________ September 15, 2023
Lyle W. Cayce
George Ray Davis, Clerk
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 Northern District of Texas
USDC No. 4:22-CV-60
______________________________
Before Stewart, Clement, and Engelhardt, Circuit Judges.
Per Curiam: *
George Ray Davis, Texas prisoner # 02297512, moves for leave to
proceed in forma pauperis (IFP) in his appeal of the district court’s denial of
his motion to stay his 28 U.S.C. § 2254 proceeding. Davis sought to stay his
§ 2254 proceeding so that he could return to state court to exhaust various
claims that he contended arose after he discovered new exculpatory
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10693 Document: 00516897194 Page: 2 Date Filed: 09/15/2023
No. 23-10693
evidence. He contends that the district court erred in denying his stay motion
under the rubric set forth in Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
As a threshold matter, we must examine the basis of our jurisdiction
to hear this appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We
may only exercise jurisdiction over final orders and certain interlocutory
orders. See 28 U.S.C. § 1291; 28 U.S.C. § 1292; Dardar v. Lafourche Realty
Co., 849 F.2d 955, 957 (5th Cir. 1988). Here, because the district court’s
order denying Davis’s motion to stay his § 2254 proceeding is neither a final
order nor an appealable interlocutory or collateral order, we lack jurisdiction
to consider his appeal from that order. See Grace v. Vannoy, 826 F.3d 813,
816-21 (5th Cir. 2016); Dardar, 849 F.2d at 957.
Accordingly, Davis’s motion to proceed IFP is DENIED, and his
appeal is DISMISSED for lack of jurisdiction. See Grace, 826 F.3d at 820-
21.
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