Yancy v. Lumpkin

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20468

CARL EDMOND YANCY,

Petitioner-Appellant

v.

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. 4:17-CV-3593

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
*

A jury convicted Carl Edmond Yancy, Texas prisoner # 1842638, of
aggravated sexual assault of a child under the age of 14. He was sentenced to
45 years in prison. He requests a certificate of appealability (COA). The
district court dismissed Yancy’s 28 U.S.C. § 2254 petition as time barred.
Yancy also moves for leave to proceed in forma pauperis (IFP) on appeal.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 20, 2020

Lyle W. Cayce
Clerk
Case: 19-20468 Document: 00515609181 Page: 1 Date Filed: 10/20/2020

No. 19-20468
2
This court must consider its jurisdiction sua sponte when necessary.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). The filing of a timely “notice
of appeal in a civil case is a jurisdictional requirement,” and an appeal that has
not been made within statutory time limits must be dismissed for lack of
jurisdiction. Bowles v. Russell, 551 U.S. 205, 213-14 (2007); Hamer v.
Neighborhood Hous. Servs., 138 S. Ct. 13, 17 (2017); 28 U.S.C. § 2107(a).
Proceedings under § 2254 are civil. See Hernandez v. Thaler, 630 F.3d 420,
424 (5th Cir. 2011). Where, as here, the United States is not party, the notice
of appeal in a civil case must be filed within 30 days after the entry of the
judgment or order being appealed. Fed. R. App. P. 4(a)(1)(A). Yancy filed a
notice of appeal more than a year after the dismissal of the § 2254 petition.
Because the notice of appeal is untimely, the appeal is DISMISSED for lack of
jurisdiction. See Bowles, 551 U.S. at 213. The motions for a COA and for leave
to proceed IFP are DENIED.
Case: 19-20468 Document: 00515609181 Page: 2 Date Filed: 10/20/2020