United States v. McCutcheon

*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not be published and is not precedent except under the limited circumstances set forth in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
October 25, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50353
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON LAMONTE MCCUTCHEON,
Defendant-Appellant.
Appeal from the United States District Court for
the Western District of Texas
(USDC No. 6:05-CV-49)
(USDC No. 6:92-CR-26-5)
_________________________________________________________
Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Byron Lamonte McCutcheon seeks a certificate of appealability (COA) to
appeal the district court’s denial of his 28 U.S.C. § 2255 motion challenging his

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conviction and sentence. Because the present 28 U.S.C. § 2255 motion is
McCutcheon’s fourth § 2255 motion, and McCutcheon failed to obtain permission
from this Court to file a successive § 2255 motion, the district court was without
jurisdiction to consider McCutcheon’s § 2255 motion. See 28 U.S.C. §§ 2255 &
2244(b); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Accordingly, we
deny the COA, vacate the judgment of the district court, and dismiss this appeal for
lack of jurisdiction.
COA DENIED; JUDGMENT VACATED; APPEAL DISMISSED FOR
LACK OF JURISDICTION.

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