IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2009
No. 08-20601
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT DANIEL DAVIS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-140-1
Before KING, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Daniel Davis, federal prisoner # 97410-079, appeals the district
court’s dismissal of his motion to vacate as an unauthorized successive 28 U.S.C.
§ 2255 motion. Davis’s motion to vacate sought to challenge his 2001 conviction
and sentence due to lack of subject matter and territorial jurisdiction. Thus, the
motion was properly construed as arising under § 2255. See Tolliver v. Dobre,
211 F.3d 876, 877-78 (5th Cir. 2000). Because Davis’s motion was properly
construed as arising under § 2255, this court lacks jurisdiction over the instant
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20601
appeal absent a certificate of appealability (COA) ruling in the district court.
See United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997). The
district court did not construe Davis’s notice of appeal as a COA request.
However, this court declines to remand this case in light of the patent frivolity
of Davis’s appeal. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.
2000). Accordingly, the instant appeal is DISMISSED for lack of jurisdiction.
2