IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40720

JODY FORD MCCREARY,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:11-CV-282

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.

PER CURIAM:*

Jody Ford McCreary, Texas prisoner # 1694118, was convicted of the 

Texas offense of tampering with physical evidence and sentenced to 12 years 

of imprisonment. The district court denied his 28 U.S.C. § 2254 petition, and 

we denied a certificate of appealability (COA). He now seeks a COA to 

challenge the district court’s order striking a post-judgment motion in his 

§ 2254 case. He also raises various substantive challenges to his evidencetampering conviction. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 26, 2018

Lyle W. Cayce

Clerk

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No. 17-40720

2

To obtain a COA, an applicant must make “a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires 

demonstrating that “reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different 

manner or that the issues presented were adequate to deserve encouragement 

to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal 

quotation marks and citation omitted).

Although McCreary challenges the district court’s order striking a prior 

post-judgment motion in his § 2254 case, his notice of appeal was filed too late

for us to have jurisdiction, even if we construe his pleadings liberally as 

pertaining to the most recent order striking such a motion before the filing of 

his notice of appeal. See 28 U.S.C. § 2107(a); Bowles v. Russell, 551 U.S. 205, 

214 (2007). McCreary’s challenges to his evidence-tampering conviction are 

barred by 28 U.S.C. § 2244(b) as his arguments either attempt to relitigate his 

earlier § 2254 claims or raise new ones. See § 2244(b)(1) (barring previously 

presented claims), (b)(2)-(3) (barring new claims without authorization); 

Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Crone v. Cockrell, 324 F.3d 

833, 836 (5th Cir. 2003).

We DISMISS this appeal for lack of jurisdiction. To the extent a COA is 

required, we also DENY the COA motion. See Slack, 529 U.S. 473, 483-84. In 

addition, we DENY leave to proceed in forma pauperis on appeal.

In light of the repeated frivolous nature of McCreary’s prior filings, he is 

WARNED that the continued filing of frivolous, repetitive, or otherwise 

abusive filings in this court or any court subject to this court’s jurisdiction will 

invite the imposition of additional sanctions, which may include dismissal, 

monetary sanctions, and restrictions on his ability to file pleadings in this court 

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or any court subject to this court’s jurisdiction. He should move to withdraw 

any pending matters that are frivolous, repetitive, or otherwise abusive.

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