REVISED MARCH 2, 2000

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 99-50639

(Summary Calendar)

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRAVIS HOMER KEY, JR.,

Defendant-Appellant,

Appeal from the United States District Court

For the Western District of Texas

 March 1, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:

Travis Homer Key, Jr., appeals the district court’s denial of his motion for the appointment

of counsel to assist in his filing of a successive habeas corpus petition. We vacate the opinion of the

district court and dismiss for lack of jurisdiction.

In 1992, Key pled guilty to second degree murder on federal property and was sentenced to
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forty yearsin prison and five years ofsupervised release. His sentence was affirmed on direct appeal

in 1993. In 1997, Key filed a petition for federal habeas corpus, alleging that the district court failed

to comply with Federal Rule of Criminal Procedure 11 and that his counsel provided ineffective

assistance. The petition was denied, and this court denied Key a certificate of appealability in 1998.

On June 9, 1999,Judge Walter Smith’s chambersreceived a two-page letter from Key asking

that counsel be appointed to assist himin filing a future petition for postconviction relief. The district

court construed this as a motion for the appointment of counsel and denied it. Key appeals.

Even though the government does not challenge this appeal on jurisdictional grounds, “we

must always be sure of our appellate jurisdiction and, ifthere is doubt, we must addressit, sua sponte

if necessary.” Casteneda v. Falcon, 166 F.3d 799, 780 (5th Cir. 1999); see also Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, __, 118 S. Ct. 1003, 1013, 140 L. Ed. 2d 210, __ (1998) (“[E]very

federal appellate court has a special obligation to satisfy itself not only ofits own jurisdiction, but also

that ofthe lower courtsin a cause under review, even though the parties are prepared to concede it.”)

(citation omitted). If the district court lacked jurisdiction, “[o]ur jurisdiction extends not to the merits

but merely for the purpose of correcting the error of the lower court in entertaining the suit.” New

York Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir. 1998).

We find that the district court lacked jurisdiction over Key’s motion. Since Key had already

filed one federal habeas petition, he needed this court’s permission before he could again challenge

his conviction or sentence in the district court. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or

successive application permitted by this section is filed in the district court, the applicant shall move

in the appropriate court of appeals for an order authorizing the district court to consider the

application.”). If he filed a second habeas petition in the district court, either pro se or assisted by
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counsel, it would be immediately dismissed for lack of jurisdiction. See Hooker v. Sivley, 187 F.3d

680, 681-82 (5th Cir. 1999); United States v. Rich, 141 F.3d 550, 554 (5th Cir. 1998). Indeed, the

purpose of this provision was to eliminate the need for the district courts to repeatedly consider

challengesto the same conviction unless an appellate panelfirst found that those challenges had some

merit. See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (“Section 2244))one of the gatekeeping

provisions of the AEDPA))was enacted primarily to preclude prisoners from repeatedly attacking

the validity of their convictions and sentences.”).

Accordingly, § 2244(b)(3)(A) acts as a jurisdictional bar to the district court’s asserting

jurisdiction over any successive habeas petition until this court has granted the petitioner permission

to file one. See Hooker, 187 F.3d at 682; WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND

PROCEDURE, JURISDICTION AND RELATED MATTERS § 4267 (describing the bar as a “significant

procedural barrier”). When a statute removes jurisdiction over a particular type of case from the

district courts, it must by necessity also remove from the district courts’ consideration motions for

the appointment of counsel to file the particular claims over which the district courtslack jurisdiction.

Cf. United States v. Jones, 963 F. Supp. 32, 34 (D. D.C. 1997) (“Because [petitioner’s] right to file

a second § 2255 motion must initiallybe addressed by the Court of Appealsrather than by this Court,

it is logical (although not specifically expressed in the Act) that the Court of Appeals is also the

appropriate forum to address his motion for an extension of time within which to file that second §

2555 motion.”). Accordingly, the district court did not have jurisdiction to consider Key’s motion

for the appointment of counsel. 

Key’s motion for the appointment of counsel should have been brought in this court as part

of his § 2244(b)(3) petition for authorization to file a successive habeas petition in the district court.
1 We DENY Key’s motion to supplement and correct the record and Key’s motion for

leave to file exhibits with hisreply brief. We GRANT Key’s motion to file his reply brief with excess

pages and accept Key’s reply brief in present form. 

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In such a context, if Key made the requisite showing, we would have the power to appoint counsel

on his behalf. See 18 U.S.C. § 3006(A)(2); Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)

(“This court appoints counsel to represent a person seeking habeas corpus relief when the interests

of justice so require and such person is financially unable to obtain representation.”); Fifth Circuit

Plan Under the Criminal Justice Act § 2 (“Any person . . . seeking relief under 28 U.S.C. Sections

2241, 2254, or 2255 . . . may apply to this court to be furnished representation.”). However, in the

present context, we have no jurisdiction to review Key’s motion on the merits, as the district court

was without the power to rule on it. See New York Life Ins. Co., 142 F.3d at 882.

Accordingly, as the district court lacked jurisdiction to rule on Key’s motion for the

appointment of counsel, we VACATE the judgment of the district court and DISMISS this appeal

for lack of jurisdiction.1