     Case: 08-30940     Document: 00511128154          Page: 1    Date Filed: 06/01/2010




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

                                                  FILED
                                                                            June 1, 2010
                                     No. 08-30940
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TIRRELL WELLS,

                                                   Petitioner-Appellant

v.

JEFFERY TRAVIS, Warden,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-8056


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Tirrell Wells, Louisiana prisoner # 332015,was convicted of possession
with intent to distribute cocaine and sentenced to 30 years’ imprisonment. His
subsequent application for federal habeas relief under 28 U.S.C. § 2254 was
denied, the district court holding: the application was untimely and not subject
to equitable tolling; and, in the alternative, Wells’ double-jeopardy claim lacked
merit and his other claims were procedurally barred.                 Wells v. Travis, No.
07-8056, 2008 WL 3166805 (E.D. La. 5 August 2008). The court granted a

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30940   Document: 00511128154 Page: 2        Date Filed: 06/01/2010
                                No. 08-30940
Certificate of Appealability (COA) on only the equitable-tolling issue. Our court
refused to grant a COA on the other issues.
      Before reaching the issue of equitable tolling, we must examine the basis
of our jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A habeas
proceeding is civil, not criminal. And, a timely notice of appeal is mandatory and
jurisdictional in a civil case. 28 U.S.C. § 2107(a); Bowles v. Russell, 551 U.S.
205, 213-14 (2007). Such notice of appeal must be filed within 30 days of entry
of the judgment or order from which the appeal is taken. F ED. R. A PP. P.
4(a)(1)(A).
      The final judgment denying Wells’ § 2254 application was entered on 6
August 2008. Allowing for the district court’s closure due to Hurricane Gustav,
the last day of the 30-day period was 8 September 2008. See F ED. R. A PP. P.
26(a)(3). Because Wells did not file a notice of appeal or a document that could
be construed as a notice of appeal by 8 September 2008, we are without
jurisdiction to consider his appeal. See Bowles, 551 U.S. at 213-14.
      Alternatively, we lack jurisdiction because Wells’ appeal is moot. See
Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987). Again, the district
court rejected his double-jeopardy claim on the merits and held his remaining
claims as procedurally barred; and our court refused to expand the COA to
consider those claims. Therefore, there is no live case or controversy before us
because there is no relief that can be granted.
      DISMISSED.




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