Mule v. Cain

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31064
Summary Calendar
PETER MULE,
Plaintiff-Appellant,
versus
BURL CAIN, Warden, Louisiana
State Penitentiary,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-1924
--------------------
August 3, 2000
Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Peter Mule, Louisiana prisoner # 73082, seeks a certificate
of appealability (“COA”) to appeal the district court’s dismissal
of his 28 U.S.C. § 2254 petition, pursuant to Federal Rules of
Civil Procedure 41(b) and 16(f), as well as the district court’s
denial of his first and second postjudgment motions and the
district court’s order striking his third postjudgment motion.

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No. 99-31064
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This court must raise, sua sponte, the issue of its own
jurisdiction, if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). The notice of appeal filed by Mule is timely as
to the district court’s order striking his third postjudment
motion only, and this court thus has jurisdiction to consider
only that order. See Nelson v. Foti, 707 F.2d 170, 171 (5th Cir.
1983); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d
665, 667-68 (5th Cir. 1986) (en banc); Fed. R. Civ. P. 60(b);
Fed. R. App. P. 4(a)(1).
Mule has demonstrated that the district court abused its
discretion in ordering his third postjudgment motion stricken for
the reason that the motion was meritorious. Because Mule’s first
and second Rule 60(b) motions should have been granted, the
district court’s order striking the third motion was an abuse of
discretion. Mule has thus demonstrated that reasonable jurists
would find it debatable whether the district court’s procedural
ruling was correct. See Slack v. McDaniel, 120 S. Ct. 1595, 1604
(2000). His petition also presents at least some facially valid
constitutional claims. See Hall v. Cain, ___ F.3d ___ (5th Cir.
July 12, 2000), 2000 WL 815463, at **2-3.
Accordingly, COA is GRANTED on the issue whether the
district court’s procedural ruling was incorrect; the order
striking Mule’s third postjudgment motion is VACATED; and the
case is REMANDED for further proceedings in connection with
Mule’s § 2254 petition.
COA GRANTED; VACATED AND REMANDED.

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