Case: 19-20736 Document: 00515976478 Page: 1 Date Filed: 08/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 12, 2021
No. 19-20736 Lyle W. Cayce
Clerk
United States of America,
Plaintiff,
versus
William Solomon Lewis,
Defendant—Petitioner.
Application for Certificate of Appealability from the
United States District Court for the Southern District of Texas
USDC No. 4:14-CV-335
Before Jones, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
William Solomon Lewis, federal prisoner # 73998-279, was convicted
by a jury of possessing an unregistered firearm. He now seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C.
§ 2255 motion challenging this conviction. In addition, Lewis requests a
COA to challenge the district court’s denial of his Federal Rule of Civil
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20736 Document: 00515976478 Page: 2 Date Filed: 08/12/2021
No. 19-20736
Procedure 60(b) motion, in which he presented new evidence in support of
his contention that the district court erred in denying relief on the merits of
his ineffective assistance claims.
“This court must examine the basis of its jurisdiction, on its own
motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A
timely notice of appeal in a civil case is a jurisdictional prerequisite. See
Bowles v. Russell, 551 U.S. 205, 213-14 (2007); 28 U.S.C. § 2107(b)(1). Lewis
had 60 days from the entry of the judgment denying his § 2255 motion in
which to file his notice of appeal. See Fed. R. App. P. 4(a)(1)(B)(i). He
did not file a notice of appeal until after this appeal period expired. His Rule
60(b) motion was not filed within the 28-day period following the entry of
judgment. See Fed. R. App. P. 4(a)(4)(A)(vi). Finally, Lewis filed no
motion to excuse the delay under Federal Rule of Appellate Procedure
4(a)(5). See Henry v. Estelle, 688 F.2d 407, 407 (5th Cir. 1982). Because
Lewis did not file a timely notice of appeal, his motion for a certificate of
appealability from the denial of his original § 2255 motion is DENIED, and
the appeal is DISMISSED for lack of jurisdiction.
Lewis did file a timely notice of appeal from the denial of his Rule
60(b) motion. The district court rejected Lewis’s postjudgment claims on
their merits. However, the court had no jurisdiction to consider his challenge
to the denial on the merits of his ineffective assistance claims, as the pleading
constituted a successive § 2255 motion and Lewis had not obtained
authorization to proceed from this court. See Gonzalez v. Crosby, 545 U.S.
524, 530-32 (2005); Adams v. Thaler, 679 F.3d 312, 321-22 (5th Cir. 2012); 28
U.S.C. § 2244(b)(3)(A); § 2255(h). Accordingly, Lewis’s request for a COA
with respect to the denial of Rule 60(b) relief is DENIED as moot, the
district court’s order denying relief on the Rule 60(b) motion is VACATED,
and the case is REMANDED with instructions to dismiss the motion for
lack of jurisdiction. See Davis v. Sumlin, 999 F.3d 278, 279-80 (5th Cir. 2021).
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Case: 19-20736 Document: 00515976478 Page: 3 Date Filed: 08/12/2021
No. 19-20736
Lewis’s motions for leave to proceed in forma pauperis on appeal, for release
on bond pending appeal, and for courtesy copies of his COA application and
brief are DENIED.
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