Smith v. Lumpkin, No. 19-20759 (5th Cir. 2021)
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Case: 19-20759 Document: 00516114455 Page: 1 Date Filed: 12/02/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 2, 2021 No. 19-20759 Summary Calendar Lyle W. Cayce Clerk Charles Darnell Smith, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-2813 Before Barksdale, Willett, and Duncan, Circuit Judges. Per Curiam:* Charles Darnell Smith, Texas prisoner # 1999312, was convicted of: indecency with a child; and super-aggravated sexual assault of a child. Proceeding pro se, he challenges, in his opening brief, the validity of his * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-20759 Document: 00516114455 Page: 2 Date Filed: 12/02/2021 No. 19-20759 convictions; in his reply brief, the denial of his motion for a stay and abatement of his 28 U.S.C. § 2254 proceeding in order to exhaust his statecourt remedies, as well as appointment of counsel. (In his reply brief, he also requests his appeal be dismissed without prejudice.) Our court lacks jurisdiction over Smith’s challenge to the district court’s interlocutory order. See Grace v. Vannoy, 826 F.3d 813, 815–21 (5th Cir. 2016) (holding court lacked jurisdiction, under the collateral-order doctrine, to review district court’s order staying § 2254 proceeding pending exhaustion of state remedies because, inter alia, not sufficiently important question separate from the merits); Thomas v. Scott, 47 F.3d 713, 715 (5th Cir. 1995) (holding order denying request for appointment of counsel in § 2254 proceeding not appealable under collateral-order doctrine). Smith is advised he can appeal any adverse ruling on his § 2254 petition after the district court enters an order and final judgment. DISMISSED. 2
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