Russell v. State of Texas

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 8, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-11271
Summary Calendar
CECIL LEE RUSSELL,
Petitioner-Appellant,
versus
STATE OF TEXAS,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:01-MC-12
--------------------
Before SMITH, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cecil Lee Russell asks this court for a certificate of
appealability (COA) from the district court’s denial of a motion
construed by the district court as a “Motion for Leave to File a
Petition for Mandamus” that was in substance merely a motion for
a hearing on Russell’s petition for leave to file a federal
habeas petition under 28 U.S.C. § 2254. Russell’s notice of
appeal pertained only to the denial of his “mandamus” motion for

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No. 02-11271
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a hearing. The denial of that motion was not a final or
otherwise appealable order. See Briargrove Shopping Ctr. Joint
Venture v. Pilgrim Enter., 170 F.3d 536, 538-39 (5th Cir. 1999).
This court therefore lacks jurisdiction to consider Russell’s
appeal.
Russell’s motion for a COA is DENIED as unnecessary, and his
appeal is DISMISSED for lack of subject-matter jurisdiction.
COA DENIED; APPEAL DISMISSED.

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