IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40089
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAYARI KANYA BLUITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:94-CR-1-ALL
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June 5, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Tayari Kanya Bluitt, federal prisoner # 04655-078, appeals
from the dismissal of his “Motion to Amend Judgment and
Sentence.” He contends that the district court erred in
construing his motion as one filed pursuant to 28 U.S.C. § 2255
and dismissing it for want of authorization to file a second such
motion. Bluitt has also filed a motion to expedite this appeal.
The district court did not err in construing Bluitt’s motion
as one filed under § 2255. Bluitt’s motion sought to raise a
challenge to the validity of his sentence. As such, it is
*
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that this opinion should not be published and is not precedent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.
No. 00-40089
-2-
properly the subject of a § 2255 motion. See Cox v. Warden, Fed.
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990); United
States v. Rich, 141 F.3d 550, 551-52 (5th Cir. 1998), cert.
denied, 526 U.S. 1011 (1999).
Because the district court properly construed Bluitt’s
motion to amend sentence as a § 2255 motion, Bluitt must obtain a
certificate of appealability (COA) before he can appeal from the
dismissal of his motion. See 28 U.S.C. § 2253. A COA ruling
must be made in the first instance in the district court, and the
district court should make such a ruling sua sponte if no request
is made. See United States v. Youngblood, 116 F.3d 1113, 1114
(5th Cir. 1997); see also Fed. R. App. P. 22(b)(1). Although the
district court did not construe Bluitt’s notice of appeal as
requesting a COA, we decline to remand this case in light of the
patent frivolity of Bluitt’s motion. See United States v.
Alvarez, F.3d , (5th Cir. Apr. 14, 2000, No. 99-20883),
2000 WL 381461 at *1. We therefore DISMISS this appeal for lack
of jurisdiction. Bluitt’s motion to expedite this appeal is
likewise DENIED.
APPEAL DISMISSED FOR LACK OF JURISDICTION; MOTION DENIED.
United States v. Bluitt
Combined Opinion