United States v. Hill , 271 F. App'x 387 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 24, 2008
No. 07-50932
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID HILL
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CV-141
USDC No. 7:04-CR-18
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
David Hill, federal prisoner # 30630-177, applied for federal habeas corpus
pursuant to 28 U.S.C. § 2255. Before ruling on the merits of his Section 2255
application, the district court issued a show cause order directing Hill to address
the timeliness of his application and directing that the Respondent be served
and file a response. Hill filed a motion requesting application of the doctrine of
equitable tolling to his pending Section 2255 motion or an extension of time to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is precedent only under the circumstances set forth
in 5TH CIR. R. 47.5.4.
No. 07-50932
file a new such motion. The district court construed Hill’s motion as a motion
for extension of time and denied the motion.
Hill filed a timely notice of appeal. The district court denied Hill’s motion
for leave to proceed in forma pauperis (IFP) on appeal. Hill seeks our reversal
of that ruling. However, instead of resolving that issue, we find it necessary to
note the absence of appellate jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987) (court should always be certain of its jurisdiction). The order
denying Hill’s motion for an extension of time was not a final order of dismissal.
See 28 U.S.C. § 1291; Askanase v. Livingwell, Inc., 981 F.2d 807, 810 (5th Cir.
1993). Though there are a few exceptions to the requirement that a final
judgment be entered prior to an appeal, we have found none that apply here.
E.g., 28 U.S.C. § 1292 (certain interlocutory orders that may be appealed).
Hill acted prematurely by filing a notice of appeal from an order that was
not the district court’s final resolution of the case. The present appeal is
dismissed for lack of jurisdiction. Nothing in today’s decision prevents Hill from
appealing a later final order by the district court.
IFP DENIED; APPEAL DISMISSED.
2