* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50653

Summary Calendar

 

CHRISTOPHER CUELLAR,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

---------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-97-CV-1151

---------------------

February 24, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Christopher Cuellar seeks permission to proceed in forma

pauperis (IFP) on appeal from the district court’s denial of his

28 U.S.C. § 2254 petition. At the time that Cuellar could have

taken his appeal, notice of appeal was to be filed with the

district court clerk within 30 days of the entry of judgment or

order appealed from in a civil case. FED. R. APP. P. 4(a)(1) 
No. 98-50653 

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(1997). If an appropriate motion is filed within 30 days after

that period has expired, the district court may extend the time

for filing a notice of appeal if it finds excusable neglect or

good cause. FED. R. APP. P. 4(a)(5). Unless a motion to extend

the time has been filed by the end of the second 30-day period,

the appeal must be dismissed, because timely filing of the notice

is a mandatory precondition to the exercise of appellate

jurisdiction. Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983);

Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir. 1981). 

Documents that “clearly evince an intent to appeal” are

considered to be equivalent to a notice of appeal, e.g.,

applications for leave to appeal IFP. Stevens v. Heard, 674 F.2d

320, 322 (5th Cir. 1982).

Although a notice of appeal was filed in Cuellar’s case

within 30 days of the denial of his § 2254 petition, it was

signed on his behalf by an “Irene Hoey,” who does not appear to

be a licensed attorney in the state of Texas. “[T]he

Constitution of the United States, in particular the First and

Sixth Amendments, does not grant to [a litigant] the right to

have an unlicensed layman represent them in Court proceedings.” 

Turner v. American Bar Ass’n, 407 F. Supp. 451, 478 (N.D. Tex.

1975), affirmed, sub nom. Pilla v. American Bar Ass’n, 542 F.2d

56 (8th Cir. 1976); see also Guajardo v. Luna, 432 F.2d 1324,

1325 (5th Cir. 1970). The notice of appeal was therefore

invalid. 

Cuellar did file a notice to proceed IFP with the district

court; however, this filing was not within the 30-day period
No. 98-50653 

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required by FED. R. APP. P. 4(a)(1). Although it was filed within

the 30-day grace permitted by Rule 4(a)(5), Cuellar did not file

a motion to extend the time for filing and did not make a showing

of good cause or excusable neglect. Although the district court

granted a partial COA as an alternative to this court’s finding

that the notice of appeal signed by Hoey was proper, the district

court did not find that excusable neglect or good cause for a

late-filed notice of appeal existed. Under the rule of this

circuit, there is no jurisdiction over the appeal and it must be

dismissed. See Mann v. Lynaugh, 840 F.2d 1194, 1196-1201.

APPEAL DISMISSED FOR LACK OF JURISDICTION.