     Case: 17-40802      Document: 00514539145         Page: 1    Date Filed: 07/03/2018




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

                                                                                FILED
                                      No. 17-40802                           July 3, 2018
                                                                           Lyle W. Cayce
LEWIS-JAY PORTER,                                                               Clerk


                                                 Plaintiff-Appellant

v.

STATE OF TEXAS, 101 West Main Street, Suite 250, Nacogdoches, Texas
75861, doing business as Carrie Gilcrease,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:17-CV-75


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Lewis-Jay Porter, Texas prisoner # 01865394, was convicted in Texas
state court for aggravated sexual assault of a child. He has filed what is best
construed as a motion for a certificate of appealability (COA).                         Porter’s
arguments appear to be based on his adherence to the so-called “sovereign
citizen” ideology. “The sovereign citizen movement is a loose grouping of
litigants, commentators, and tax protesters who often take the position that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40802    Document: 00514539145      Page: 2   Date Filed: 07/03/2018


                                  No. 17-40802

they are not subject to state or federal statutes and proceedings.” United States
v. Weast, 811 F.3d 743, 746 n.5 (5th Cir.), cert. denied, 137 S. Ct. 126 (2016).
      This court may issue a COA only if Porter has “made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this requirement, Porter must demonstrate that reasonable jurists
could disagree with the district court’s resolution of his constitutional claims
or that the issues presented were adequate to deserve encouragement to
proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
      The district court did not rule on whether a COA should issue. Because
the district court did not do so, we may assume without deciding that we lack
jurisdiction. See Cardenas v. Thaler, 651 F.3d 442, 443-44 (5th Cir. 2011); Rule
11(a), RULES GOVERNING § 2254 CASES. However, we decline to remand in
order for the district court to make the COA determination in the first instance
because remand would be futile. See United States v. Alvarez, 210 F.3d 309,
310 (5th Cir. 2000). Even if the district court had made the determination in
the first instance, we would still deny a COA because Porter has not made the
required showing. See Slack, 529 U.S. at 484.
      Accordingly, the appeal is DISMISSED for lack of jurisdiction, and
Porter’s constructive motion for COA is DENIED AS MOOT.




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