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Herbert Butler v. Darrel Vannoy, Warden
685 F. App'x 327
| 5th Cir. | 2017
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Docket

*1 Before JONES, SMITH, and DENNIS, Circuit Judges.

PER CURIAM: [*]

Herbert Butler, Louisiana prisoner # 124959, was convicted of second- *2 Case: 16-30312 Document: 00513952104 Page: 2 Date Filed: 04/13/2017

No. 16-30312

degree murder and sentenced to imprisonment for life. He moves for a certifi- cate of appealability (“COA”) and for leave to proceed in forma pauperis (“IFP”) to challenge the denial of his motion for permission to file a Federal Rule of Civil Procedure 60(b)(6) motion. That proposed motion sought to challenge a state appellate court’s finding that Butler had failed to preserve a particular issue for review on direct appeal.

Because the proposed motion does not address any aspect of the denial of Butler’s 28 U.S.C. § 2254 application, it raises new claims, so it is a succes- sive Section 2254 application. See Gonzalez v. Crosby , 545 U.S. 524, 532–33 (2005). Because Butler did not have this court’s permission to file a second or successive application, the district court did not have jurisdiction to consider it. See In re Sepulvado , 707 F.3d 550, 556 (5th Cir. 2013). Therefore, the appeal is DISMISSED. See United States v. Key, 205 F.3d 773, 774–75 (5th Cir. 2000).

To the extent that Butler is required to obtain a COA, his request is DENIED, because he has not made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 529 U.S. 473, 484 (2000). Accordingly, his motion for leave to proceed IFP on appeal also is DENIED.

2

[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

Case Details

Case Name: Herbert Butler v. Darrel Vannoy, Warden
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Apr 13, 2017
Citation: 685 F. App'x 327
Docket Number: 16-30312
Court Abbreviation: 5th Cir.
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