Allen v. Musgrove ( 2004 )


Menu:
  •                                                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    May 11, 2004
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 03-61065
    USDC No. 3:03-CV-1211-WS
    Summary Calendar
    ROBERT ALLEN,
    Plaintiff-Appellant,
    versus
    RONNIE MUSGROVE, Governor; AMY TUCK, Lieutenant Governor;
    CHRISTOPHER EPPS, Mississippi Department of Corrections Commissioner;
    RON KING, Southern Mississippi Correctional Institution - Warden;
    JOHNNIE DENMARK; JANE T BOND, Mississippi Department of Corrections-
    Records Director; JOHN DOES;
    Defendants-
    Appellees.
    ------------------------------------------------------------
    Appeal from the United States District Court
    for the Southern District of Mississippi
    ------------------------------------------------------------
    Before SMITH, DeMOSS, AND STEWART, Circuit Judges:
    PER CURIAM:*
    Robert Allen (“Allen”), Mississippi prisoner #85120, appeals the district court’s dismissal of
    his civil action with prejudice as to it being brought under 
    42 U.S.C. § 1983
     and without prejudice
    *
    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 R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    for failure to exhaust state remedies as to it being brought as a habeas corpus action pursuant to 
    28 U.S.C. § 2254
    .
    To the extent that Allen is appealing the district court’s dismissal of his habeas corpus claims,
    Allen must obtain a certificate of appealability (“COA”) before we have jurisdiction to consider his
    appeal. See 
    28 U.S.C. § 2253
    (c). The district court, however, did not rule on whether Allen should
    be granted a COA to appeal the dismissal of his habeas corpus claims. Although Allen has not
    requested a COA to appeal the dismissal of his habeas corpus claims, this court may construe his
    notice of appeal as such a request. See FED. R. APP. P. 22(b)(2).
    Until the district court issues a COA ruling, this court lacks jurisdiction to address Allen’s
    appellate COA request. See United States v. Youngblood, 
    116 F.3d 1113
    , 1115 (5th Cir. 1997).
    Accordingly, the case is REMANDED to the district court for the LIMITED PURPOSE of
    determining whether a COA should issue in accordance with FED. R. APP. P. 22(b) and 
    28 U.S.C. § 2253
    (c). See Youngblood, 
    116 F.3d at 1115
    . Once the district court has issued such a ruling, this
    court will consider both Allen’s COA request and his 
    42 U.S.C. § 1983
     claims.
    LIMITED REMAND.
    -2-
    

Document Info

Docket Number: 03-61065

Judges: Smith, Demoss, Stewart

Filed Date: 5/11/2004

Precedential Status: Non-Precedential

Modified Date: 3/2/2024