United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-51238
Conference Calendar
EDWARD C. STEWART,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CV-411
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Edward C. Stewart, Texas prisoner # 905933, pleaded nolo
contendere to aggravated sexual assault of a child, an offense
for which he received a 10-year sentence. Stewart filed a
28 U.S.C. § 2254 application to challenge this conviction and
sentence in May 2001. Stewart filed another § 2254 application,
which is the subject of the instant motion for a certificate of
appealability (COA), in May 2005.
*
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this opinion should not be published and is not precedent except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.
No. 05-51238
-2-
Stewart argues that the May 2005 application does not
concern his conviction and that it is instead a challenge to the
state’s failure to preserve DNA evidence and its refusal to
permit DNA testing. However, given Stewart’s contention that DNA
evidence was potentially exculpatory, we consider the May 2005
application to be a second or successive § 2254 application
attacking the conviction. See Cook v. Texas Dep’t of Crim.
Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir.
1994).
Stewart has not obtained authorization from this court to
file a second or successive § 2254 application. The May 2005
application was thus an unauthorized application that the
district court was without jurisdiction to consider. See United
States v. Key, 205 F.3d 773, 774-75 (5th Cir. 2000).
Accordingly, this appeal is dismissed for lack of
jurisdiction. See id. Stewart’s COA motion is denied as
unnecessary. His motion for leave to proceed in forma pauperis
(IFP) is also denied.
APPEAL DISMISSED; REQUEST FOR COA DENIED AS UNNECESSARY; IFP
DENIED.