Filed: Jun. 05, 2020
Latest Update: Jun. 06, 2020
Summary: Case: 19-11059 Document: 00515443253 Page: 1 Date Filed: 06/05/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-11059 June 5, 2020 Lyle W. Cayce Clerk consolidated with No. 19-11138 CHRISTOPHER WOOTEN, Petitioner-Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee Appeals from the United States District Court for the Northern District of Texas US
Summary: Case: 19-11059 Document: 00515443253 Page: 1 Date Filed: 06/05/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-11059 June 5, 2020 Lyle W. Cayce Clerk consolidated with No. 19-11138 CHRISTOPHER WOOTEN, Petitioner-Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee Appeals from the United States District Court for the Northern District of Texas USD..
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Case: 19-11059 Document: 00515443253 Page: 1 Date Filed: 06/05/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11059 June 5, 2020
Lyle W. Cayce
Clerk
consolidated with No. 19-11138
CHRISTOPHER WOOTEN,
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:17-CV-118
Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Christopher Wooten, Texas prisoner # 2089854, filed a 28 U.S.C. § 2254
petition challenging two felony convictions for driving while intoxicated (DWI)
as a repeat offender. In 2012, in state case No. 13389, he was sentenced to 10
years in prison, and in 2016, in state case No. 14804, he was sentenced to 13
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 19-11138
years in prison. He contended that a 1983 misdemeanor DWI conviction was
improperly used as a predicate for his repeat-offender DWI convictions.
In a July 2019 order (the July Order), the district court severed the
claims, dismissing the challenge to No. 13389 as successive and unauthorized,
and directing that the challenge to No. 14804 be considered in a new § 2254
proceeding that would be stayed pending Wooten’s exhaustion of state
remedies. Later, in a September 2019 order (the September Order), the district
court denied a motion for reconsideration of the July Order.
Wooten has moved this court for a certificate of appealability (COA) in
appeal No. 19-11059 and appeal No. 19-11138. Because the COA motions
relate to the same district court proceeding, we consolidate the appeals.
When Wooten’s pleadings are construed with utmost liberality, he may
be deemed to assert that the district court deprived him of due process by
dismissing the part of his § 2254 petition that challenged state conviction
No. 13389; the order to sever and stay pending exhaustion was in error because
state remedies are inadequate to give him all the relief he seeks; the 1983 state
DWI conviction is invalid as a predicate offense; and the collateral order
doctrine applies, though Wooten does not identify any particular “collateral
order.” All of his claims challenge some aspect of the July Order. However,
there is no timely notice of appeal from the July Order. Accordingly, we
dismiss the claims for lack of jurisdiction. See Bowles v. Russell, 551 U.S. 205,
213-14 (2007).
Some of Wooten’s assertions about the severance and stay may be
liberally construed as calling into question the September Order denying the
motion to reconsider. There is a timely notice of appeal for these claims. The
motion for reconsideration was not filed within the 28 days allowed under
Federal Rule of Civil Procedure 59(e). It was thus, in effect, a motion under
Federal Rule of Civil Procedure 60(b) that neither extended the time for
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appealing the July order nor brought up that order for review. See FED. R. APP.
P. 4(a)(4)(A); Williams v. Thaler, 602 F.3d 291, 303 & n.8 (5th Cir. 2010); see
also In re Ta Chi Navigation (Panama) Corp. S.A.,
728 F.2d 699, 703 (5th Cir.
1984).
A COA is generally required to appeal the denial of a Rule 60(b) motion
in a habeas case. See Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th
Cir. 2007). We will issue a COA to appeal the denial of the Rule 60(b) motion
only if Wooten shows that “a jurist of reason could conclude that the district
court’s denial of [his] motion was an abuse of discretion.” Hernandez v. Thaler,
630 F.3d 420, 428 (5th Cir. 2011).
Wooten’s bare assertions, unsupported by any coherent argument, fail to
show that the district court’s denial of the Rule 60(b) motion is debatable
among jurists of reason. See id. A COA is denied as to the contentions that
arguably call into question the denial of the postjudgment motion. In all other
respects a COA is denied as moot. Wooten’s motion’s for appointment of
counsel and for leave to file a second petition are also denied.
This court has previously dismissed at least four appeals related to
Wooten’s habeas proceedings because he tried to appeal unappealable orders.
The district court and this court have warned Wooten that repetitive and
frivolous filings would expose him to sanctions. See Wooten v. Davis, No. 18-
10501 (5th Cir. Mar. 1, 2019); Wooten v. Davis, No. 1:14-CV-72, 2018 WL
10424865, 1 (N.D. Tex. Apr. 30, 2018). He remains undeterred.
Accordingly, we now impose upon Wooten a sanction of $100 (One
Hundred Dollars), to be paid to the clerk of this court. Until the sanction is
paid in full, Wooten is BARRED from filing in this court, or any court subject
to this court’s jurisdiction, any original action, notice of appeal, motion, or other
pleading seeking to challenge any existing state DWI conviction or sentence.
Wooten is also WARNED that prior sanction warnings remain in effect, and
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that his failure to comply with them will subject him to additional and
progressively more severe sanctions. Wooten is directed to review any pending
matters and move to dismiss any actions or withdraw any pleadings that
violate prior warnings.
APPEALS CONSOLIDATED; APPEAL DISMISSED IN PART FOR
LACK OF JURISDICTION; COA DENIED IN PART AND DENIED IN PART
AS MOOT; MOTIONS TO APPOINT COUNSEL AND TO FILE A SECOND
PETITION DENIED; SANCTION IMPOSED; SANCTION WARNING
ISSUED.
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