     Case: 12-30659       Document: 00512181907         Page: 1     Date Filed: 03/20/2013




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

                                                                            FILED
                                                                          March 20, 2013
                                     No. 12-30659
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




KYLE SPRING,

                                                  Petitioner-Appellant,

versus

JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections,

                                                  Respondent-Appellee.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                 No. 3:11-CV-308




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Kyle Spring, Louisiana prisoner # 555065, was convicted following a bench
trial of second degree murder and was sentenced to life in prison. After unsuc-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30659      Document: 00512181907     Page: 2   Date Filed: 03/20/2013

                                  No. 12-30659

cessful direct review, he filed a timely 28 U.S.C. § 2254 petition for writ of
habeas corpus asserting claims arising out of the denial of a motion for a new
trial. The district court denied the petition but granted a certificate of appeala-
bility (“COA”). After obtaining an extension of time, Spring filed a notice of
appeal (“NOA”).
      The timing of Spring’s NOA raises a threshold jurisdictional question that
we address sua sponte. See Hernandez v. Thaler, 630 F.3d 420, 424 & n.11 (5th
Cir. 2011) (per curiam). A habeas proceeding is a civil action, so the “timely fil-
ing of [an NOA] is a jurisdictional prerequisite.” Id. at 424 & n.13. Spring had
thirty days from entry of the dismissal order on March 28, 2012, to file his NOA,
see FED. R. APP. P. 4(a)(1)(A), so the NOA was due April 27, 2012, see FED. R.
APP. P. 26 (a)(1)(A), (B).
      Spring did not file an NOA within the thirty-day period. Instead, on
May 31, 2012, he moved for an extension of time to file his NOA, claiming good
cause and excusable neglect under Rule 4(a)(5) of the Federal Rules of Appellate
Procedure. The problem for Spring, however, is that a Rule 4(a)(5) motion based
on good cause or excusable neglect must be filed within thirty days of the expira-
tion of the time to file an NOA. FED. R. APP. P. 4(a)(5)(A)(i). Because the period
for filing an NOA expired on April 27, the motion for extension was due May 29
(excluding May 27 and 28, a Sunday and a federal holiday, respectively). See
FED. R. APP. P. 26(a)(1)(A)-(C). The May 31 motion was untimely, and the dis-
trict court’s order granting the motion did not confer jurisdiction on this court.
See, e.g., In re MDL 262, 799 F.2d 1076, 1078-79 (5th Cir. 1986) (holding that
compliance with Rule 4(a)(5) is essential to appellate jurisdiction).
      Moreover, Spring’s motion for a COA, filed on April 1, 2012, cannot be
deemed a timely NOA. Although a document filed within the notice period may
be construed as an NOA, it must, among other things, clearly evince an intent
to appeal. See Bailey v. Cain, 609 F.3d 763, 765-66 (5th Cir. 2010); Page v.
DeLaune, 837 F.2d 233, 236-37 (5th Cir. 1988). Spring’s COA motion stated, “In

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                                 No. 12-30659

an abundance of caution, and should Petitioner decide to seek appellate action
within the time period provided under Federal Rule of Appellate Procedure 4(a),
[a COA] is respectfully requested.” That language does not clearly evince
Spring’s intent to appeal. In addition, neither the motion for COA nor the order
granting it mentions good cause or excusable neglect; thus, the grant of a COA
does not bear on timeliness. See Mann v. Lynaugh, 840 F.2d 1194, 1198-99 &
n.4 (5th Cir. 1988).
      Because Spring failed to file a timely NOA, we do not have jurisdiction. See
Hernandez, 630 F.3d at 424 & n.11; In re MDL 262, 799 F.2d at 1078-79. The
appeal, accordingly, is DISMISSED for want of appellate jurisdiction.




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