United States v. Davis

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           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.




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