David Johnson v. Lorie Davis, Director ( 2018 )

Case: 18-20052 Document: 00514718295 Page: 1 Date Filed: 11/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-20052 United States Court of Appeals
Fifth Circuit
FILED
November 9, 2018
DAVID LEE JOHNSON,
Lyle W. Cayce
Petitioner-Appellant Clerk
v.
LORIE DAVIS, 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. 4:16-CV-2191
Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
David Lee Johnson, Texas prisoner # 1829266, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 petition challenging his conviction for assault by a family/house
member with two plus acts of violence. The district court dismissed his § 2254
petition as time barred.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20052 Document: 00514718295 Page: 2 Date Filed: 11/09/2018
No. 18-20052
“This court must examine the basis of its jurisdiction, on its own motion,
if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Within 28
days of the entry of the final judgment dismissing his § 2254 petition, Johnson
filed a self-styled motion pursuant to Federal Rule of Civil Procedure 60(b),
challenging the correctness of the court’s dismissal of his § 2254 petition.
Because the motion was filed within 28 days of the entry of judgment, then it
must be construed as a motion pursuant to Federal Rule of Civil Procedure
59(e). See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994); see also
Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668-69 (5th Cir.
1986) (en banc).
The record does not reflect that the district court has ruled on Johnson’s
postjudgment motion. As the motion has not yet been disposed of, his notice of
appeal is ineffective. See Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994); see
also FED. R. APP. P. 4(a)(4)(B)(i). Accordingly, the case must be remanded for
consideration of the outstanding motion 1 as expeditiously as possible,
consistent with a just and fair disposition thereof. See Burt, 14 F.3d at 261.
Johnson’s COA motion and motion to view and obtain a sealed document shall
be held in abeyance until his notice of appeal is effective. We instruct the clerk
of this court to process the pending motions immediately upon the return of
this case from the district court.
LIMITED REMAND; HOLD MOTIONS IN ABEYANCE.
1 Docket entry no. 11 on the district court’s docket sheet.
2