United States v. Torri Anderson

Case: 15-10653 Document: 00513732552 Page: 1 Date Filed: 10/25/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 15-10653
Fifth Circuit

FILED
October 25, 2016

UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee

TORRI DLENA ANDERSON,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CV-453

Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Torri Dlena Anderson, federal prisoner # 45585-177, was convicted of
conspiracy to produce false identification documents and sentenced to 180
months of imprisonment. On July 1, 2015, she filed a motion to obtain relief
pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013). The district court
denied the motion noting that Anderson had raised an Alleyne claim in her
original 28 U.S.C. § 2255 motion and that she needed to obtain authorization
from this court to file a successive § 2255 motion. Anderson now moves this

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-10653 Document: 00513732552 Page: 2 Date Filed: 10/25/2016

No. 15-10653

court for a certificate of appealability (COA) to appeal the district court’s denial
of her postjudgment motion. She has also filed a motion for the appointment
of counsel.
A COA is required to appeal the denial of an unauthorized successive
§ 2255 motion. See Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). The
district court did not determine whether Anderson was entitled to a COA.
Because the district court has not issued a COA ruling, we assume without
deciding that we lack jurisdiction over the appeal. See Rule 11(a), Rules
Governing § 2255 Proceedings; Cardenas, 651 F.3d at 444 & nn.1-2.
Nevertheless, we decline to remand this case to the district court for a COA
ruling because a remand would be futile. See United States v. Alvarez, 210
F.3d 309, 310 (5th Cir. 2000). Anderson’s postjudgment motion was properly
construed as an unauthorized successive § 2255 motion. See Gonzalez v.
Crosby, 545 U.S. 524, 531-32 (2005); United States v. Hernandes, 708 F.3d 680,
681 (5th Cir. 2013). Because the district court lacked jurisdiction to consider
Anderson’s postjudgment motion, we lack jurisdiction to review the denial of
that motion on the merits. See United States v. Key, 205 F.3d 773, 774-75 (5th
Cir. 2000).
Accordingly, the appeal is DISMISSED for lack of jurisdiction, and
Anderson’s motions for a COA and the appointment of counsel are DENIED
AS MOOT.