Opinion
No. 08-51059 Summary Calendar.
September 3, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Garrie Lavert Samuels, Jonesville, VA, pro se.
Appeal from the United States District Court for the Western District of Texas, USDC No. 7:02-CR-108-1.
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
Garrie Lavert Samuels, federal prisoner #27012-077, appeals from the district court's order denying his motion for relief from judgment from the denial of his 28 U.S.C. § 2255 motion pursuant to FED. R.CIVP. 60(b). Samuels now moves this court for leave to proceed in forma pauperis (IFP) on appeal.
This court must examine the basis of its jurisdiction sua sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A certificate of appealability (COA) is required from "the final order in a habeas corpus proceeding." 28 U.S.C. § 2253(c)(1). The denial of a Rule 60(b) motion is a final appealable order within the meaning of § 2253, which requires a COA from a final order in a habeas proceeding. See Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007). This court lacks jurisdiction over Samuels's appeal absent a COA ruling in the district court. See Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997). Accordingly, Samuels's IFP motion is premature and will be denied without prejudice. This case is remanded to the district court for the limited purpose of considering whether a COA should issue.
IFP DENIED; REMANDED.