Hess v. Quarterman

Full title: Jeffrey HESS, Petitioner-Appellant v. Nathaniel QUARTERMAN, Director…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 30, 2007

239 F. App'x 86 (5th Cir. 2007)

Opinion

No. 06-10572 Summary Calendar.

August 30, 2007.

Jeffrey Hess, Teague, TX, pro se.

Michelle Dulany Roche, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3.-97-CV-960.

Before WIENER, GARZA, and PRADO, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Jeffrey Hess, Texas prisoner #696464, moves for a certificate of appealability (COA) to appeal the district court's order unfiling his Rule 60(b) motion for relief from judgment. As Hess is not seeking to appeal from the final order in a habeas proceeding, Hess does not need a COA. See 28 U.S.C. § 2253(c)(1). A COA is therefore denied as unnecessary. See id.

In 1994, Hess was convicted of aggravated sexual assault of a child. See Hess v. Cockrell, 281 F.3d 212, 214 (5th Cir. 2002). He was sentenced to 15-years imprisonment. Id. Hess's first 28 U.S.C. § 2254 petition challenging his conviction and sentence was filed in April 1997. See id. In October 1997, that § 2254 petition was dismissed as time-barred. See id. In 2002, this court found that the application of the time-bar was appropriate. Id. at 216. In the Rule 60(b) motion, filed in April 2006 and unfiled by the district court, Hess was attempting to challenge the October 1997 judgment dismissing his first § 2254 petition as time-barred. Hess's purported Rule 60(b) motion in a closed case was "a meaningless, unauthorized motion" with no statutory or legal basis. See, e.g., United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). As such, this court lacks jurisdiction to entertain this appeal. See id.

In September 2006, this court denied Hess's third petition for leave to file a successive 28 U.S.C. § 2254 application and issued a sanctions warning. In re Jeffrey Hess, No. 06-10718 (5th Cir. Sept. 7, 2006) (unpublished). Because this appeal was pending prior to imposition of the sanctions warning, we decline to impose a monetary sanction at this time. However, Hess is again CAUTIONED that any future frivolous or repetitive filings in this court or in any court subject to this court's jurisdiction will subject him to sanctions.

COA DENIED AS UNNECESSARY; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.