Opinion
No. 08-30940 Summary Calendar.
June 1, 2010.
Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:07-CV-8056.
Before KING, BARKSDALE, and GARZA, Circuit Judges.
Tirrell Wells, Louisiana prisoner # 332015, was convicted of possession with intent to distribute cocaine and sentenced to 30 years' imprisonment. His subsequent application for federal habeas relief under 28 U.S.C. § 2254 was denied, the district court holding: the application was untimely and not subject to equitable tolling; and, in the alternative, Wells' double-jeopardy claim lacked merit and his other claims were procedurally barred. Wells v. Travis, No. 07-8056, 2008 WL 3166805 (E.D. La. 5 August 2008). The court granted a Certificate of Appealability (COA) on only the equitable-tolling issue. Our court refused to grant a COA on the other issues.
Before reaching the issue of equitable tolling, we must examine the basis of our jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A habeas proceeding is civil, not criminal. And, a timely notice of appeal is mandatory and jurisdictional in a civil case. 28 U.S.C. § 2107(a); Bowles v. Russell, 551 U.S. 205, 213-14 (2007). Such notice of appeal must be filed within 30 days of entry of the judgment or order from which the appeal is taken. FED. R. APP. P. 4(a)(1)(A).
The final judgment denying Wells' § 2254 application was entered on 6 August 2008. Allowing for the district court's closure due to Hurricane Gustav, the last day of the 30-day period was 8 September 2008. See FED. R. APP. P. 26(a)(3). Because Wells did not file a notice of appeal or a document that could be construed as a notice of appeal by 8 September 2008, we are without jurisdiction to consider his appeal. See Bowles, 551 U.S. at 213-14.
Alternatively, we lack jurisdiction because Wells' appeal is moot. See Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987). Again, the district court rejected his double-jeopardy claim on the merits and held his remaining claims as procedurally barred; and our court refused to expand the COA to consider those claims. Therefore, there is no live case or controversy before us because there is no relief that can be granted.
DISMISSED.