Winston v. Pratt

Case: 21-50507 Document: 00516411055 Page: 1 Date Filed: 07/28/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-50507 July 28, 2022 Summary Calendar Lyle W. Cayce Clerk Bravern Ray Winston, Plaintiff—Appellant, versus Hill County District Attorney Mark Pratt; Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division; Board of Pardons and Paroles, Defendants—Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. 6:20-CV-367

Before Southwick, Graves, and Oldham, Circuit Judges.

Per Curiam:* Bravern Winston, Texas inmate # 1928284, appeals the district court’s denial of his application for a certificate of appealability (“COA”).

Case: 21-50507 Document: 00516411055 Page: 2 Date Filed: 07/28/2022

No. 21-50507

The district court had dismissed Winston’s 42 U.S.C. § 1983 suit as frivolous and his motions for reconsideration were denied. We point out that the requirement for a COA set out in 28 U.S.C. § 2253(a) applies in “a habeas corpus proceeding or a proceeding under 28 U.S.C. § 2255 before a district judge”; there is no need to seek a certificate of appealability in a civil case such as this one.

We treat Winston’s application for a COA as a notice of appeal. He gains little from our recasting, though, because after considering his brief, we dismiss the appeal as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (holding an appeal without arguable merit to be frivolous).