Case: 16-10178 Document: 00513922983 Page: 1 Date Filed: 03/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10178 FILED
March 22, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
TONY ALVAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:14-CV-77
USDC No. 5:12-CR-40-1
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Tony Alvarez, federal prisoner # 44485-177, moves for a certificate of
appealability (COA) and to proceed in forma pauperis (IFP) to appeal the
district court’s denial of his Federal Rule of Civil Procedure 60(b) motion for
reconsideration of the judgment dismissing his 28 U.S.C. § 2255 motion
challenging his conviction for child pornography. See Ochoa Canales v.
Quarterman, 507 F.3d 884, 888 (5th Cir. 2007).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10178 Document: 00513922983 Page: 2 Date Filed: 03/22/2017
No. 16-10178
The district court did not determine whether a COA should issue from
the denial of the Rule 60(b) motion. We lack jurisdiction over the present
appeal without such a ruling. See Sonnier v. Johnson, 161 F.3d 941, 945-46
(5th Cir. 1998); United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.
1997). However, we decline to remand this case to the district court for a COA
ruling in light of the patent frivolity of the appeal. See United States v. Alvarez,
210 F.3d 309, 310 (5th Cir. 2000). The appeal is frivolous because the Rule
60(b) motion, which was not meaningfully directed to the district court’s
procedural ruling, was a successive § 2255 motion. See Gonzalez v. Crosby, 545
U.S. 524, 530-33 (2005); United States v. Hernandes, 708 F.3d 680, 681 (5th
Cir. 2013). Thus, the district court did not have jurisdiction to consider the
motion without authorization from this court, which was neither sought nor
given. See In re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013).
The appeal is DISMISSED for lack of jurisdiction, and Alvarez’s motions
for a COA and for IFP are DENIED AS MOOT.
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