                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-51238
                        Conference Calendar



EDWARD C. STEWART,

                                    Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 5:05-CV-411
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Edward C. Stewart, Texas prisoner # 905933, pleaded nolo

contendere to aggravated sexual assault of a child, an offense

for which he received a 10-year sentence.     Stewart filed a

28 U.S.C. § 2254 application to challenge this conviction and

sentence in May 2001.   Stewart filed another § 2254 application,

which is the subject of the instant motion for a certificate of

appealability (COA), in May 2005.



     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-51238
                                  -2-

     Stewart argues that the May 2005 application does not

concern his conviction and that it is instead a challenge to the

state’s failure to preserve DNA evidence and its refusal to

permit DNA testing.   However, given Stewart’s contention that DNA

evidence was potentially exculpatory, we consider the May 2005

application to be a second or successive § 2254 application

attacking the conviction.     See Cook v. Texas Dep’t of Crim.

Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir.

1994).

     Stewart has not obtained authorization from this court to

file a second or successive § 2254 application.    The May 2005

application was thus an unauthorized application that the

district court was without jurisdiction to consider.     See United

States v. Key, 205 F.3d 773, 774-75 (5th Cir. 2000).

     Accordingly, this appeal is dismissed for lack of

jurisdiction.    See id.   Stewart’s COA motion is denied as

unnecessary.    His motion for leave to proceed in forma pauperis

(IFP) is also denied.

     APPEAL DISMISSED; REQUEST FOR COA DENIED AS UNNECESSARY; IFP

DENIED.
