     Case: 17-40720      Document: 00514658149         Page: 1    Date Filed: 09/26/2018




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

                                      No. 17-40720                               FILED
                                                                        September 26, 2018
                                                                            Lyle W. Cayce
JODY FORD MCCREARY,                                                              Clerk

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:11-CV-282


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jody Ford McCreary, Texas prisoner # 1694118, was convicted of the
Texas offense of tampering with physical evidence and sentenced to 12 years
of imprisonment. The district court denied his 28 U.S.C. § 2254 petition, and
we denied a certificate of appealability (COA).              He now seeks a COA to
challenge the district court’s order striking a post-judgment motion in his
§ 2254 case. He also raises various substantive challenges to his evidence-
tampering conviction.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-40720

      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
demonstrating that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal
quotation marks and citation omitted).
      Although McCreary challenges the district court’s order striking a prior
post-judgment motion in his § 2254 case, his notice of appeal was filed too late
for us to have jurisdiction, even if we construe his pleadings liberally as
pertaining to the most recent order striking such a motion before the filing of
his notice of appeal. See 28 U.S.C. § 2107(a); Bowles v. Russell, 551 U.S. 205,
214 (2007). McCreary’s challenges to his evidence-tampering conviction are
barred by 28 U.S.C. § 2244(b) as his arguments either attempt to relitigate his
earlier § 2254 claims or raise new ones. See § 2244(b)(1) (barring previously
presented claims), (b)(2)-(3) (barring new claims without authorization);
Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Crone v. Cockrell, 324 F.3d
833, 836 (5th Cir. 2003).
      We DISMISS this appeal for lack of jurisdiction. To the extent a COA is
required, we also DENY the COA motion. See Slack, 529 U.S. 473, 483-84. In
addition, we DENY leave to proceed in forma pauperis on appeal.
      In light of the repeated frivolous nature of McCreary’s prior filings, he is
WARNED that the continued filing of frivolous, repetitive, or otherwise
abusive filings in this court or any court subject to this court’s jurisdiction will
invite the imposition of additional sanctions, which may include dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court




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                                No. 17-40720

or any court subject to this court’s jurisdiction. He should move to withdraw
any pending matters that are frivolous, repetitive, or otherwise abusive.




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