     Case: 10-10186     Document: 00511561085         Page: 1     Date Filed: 08/03/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 3, 2011

                                       No. 10-10186                        Lyle W. Cayce
                                                                                Clerk

CHARLTON WATSON,

                                                  Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CV-1125


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant Charlton Watson, Texas prisoner #1360807, filed a
federal habeas application that the district court dismissed as untimely. Watson
made a general request that the district court issue a certificate of appealability
(COA), which the district court denied. Watson did not raise a statutory tolling
claim in the district court—either in response to the magistrate judge’s
recommendation to dismiss his habeas application as untimely, or in his request


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10186       Document: 00511561085        Page: 2    Date Filed: 08/03/2011



                                      No. 10-10186

for a COA. Thereafter, however, he sought a COA from this court based on such
a claim. We granted that COA, and the statutory tolling claim is now before us.
       The government has questioned whether we have appellate jurisdiction to
rule on Watson’s statutory tolling claim. We have previously held in dismissing
a request for a COA that, when a defendant raises a claim “for the first time in
his COA application filed in this court, . . . this court has no authority to grant
a COA for the claim.”1 We have based that conclusion on our consistent refusal
to consider a habeas claim before the district court has addressed it:
       In general, before we may consider a petitioner’s application for a
       COA on a particular issue, that petitioner must first submit his
       request to the district court and have that request denied. See, e.g.,
       Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998) (“Compliance
       with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional,
       and the lack of a ruling on a COA in the district court causes this
       court to be without jurisdiction to consider the appeal.”). Without a
       ruling on whether a petitioner is entitled to a COA that covers a
       specific issue, we would dismiss without prejudice.2
Accordingly, we did not have jurisdiction to issue a COA to Watson on his
statutory tolling claim. We therefore vacate our earlier COA and DISMISS
Watson’s instant appeal, without prejudice, for lack of appellate jurisdiction.




       1
        Johnson v. Quarterman, 483 F.3d 278, 288 (5th Cir. 2007) (citing Goodwin v. Johnson,
224 F.3d 450, 459 & n.6 (5th Cir. 2000)).
       2
           Goodwin, 224 F.3d at 459 & n.6.

                                             2
