     Case: 18-10777      Document: 00514931318         Page: 1    Date Filed: 04/25/2019




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

                                      No. 18-10777                                FILED
                                                                              April 25, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HOMERO MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:17-CV-904


Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
       Homero Martinez, federal prisoner # 45120-177, was convicted of
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine. The district court found that his 28 U.S.C. § 2255 motion
was an unauthorized successive motion and dismissed it for lack of jurisdiction.
Later, the district court denied his motion for a certificate of appealability
(COA) as moot because it had already denied a COA.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10777     Document: 00514931318     Page: 2   Date Filed: 04/25/2019



                                  No. 18-10777
      Martinez now seeks a COA. To obtain a COA, an applicant must make
“a substantial showing of the denial of a constitutional right.”       28 U.S.C.
§ 2253(c)(2). This requires him to show that reasonable jurists would find the
district court’s decision to deny relief debatable or wrong, Slack v. McDaniel,
529 U.S. 473, 484 (2000), or “that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further,” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). This court would lack jurisdiction over an
appeal from the district court’s dismissal of Martinez’s § 2255 motion because
he failed to file a timely notice of appeal from this judgment. Accordingly,
Martinez fails to make the showing required for a COA to appeal from this
judgment.
      To the extent that Martinez also seeks to appeal from the denial of a
COA, the denial of a COA is not, by itself, a final and appealable order within
the meaning of § 2253(c)(1)(B) and 28 U.S.C. § 1291. Accordingly, the appeal
is dismissed for lack of jurisdiction.
      APPEAL DISMISSED.




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