United States v. Astrit Bekteshi

675 F. App'x 500

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 6, 2017
• Docket: 16-40207
• Status: Unpublished

Opinion

PER CURIAM: *

Astrit Bekteshi, federal inmate # 41709-424, pleaded guilty to conspiring to distribute or possess with the intent to distribute cocaine, heroin, ecstasy, or marijuana and was sentenced to 135 months of imprisonment. Bekteshi seeks a certifícate of ap-pealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion.

An appeal may not be taken from a final order in a § 2255 proceeding unless a district court judge or circuit justice issues a COA. 28 U.S.C. § 2253(c)(1)(B). Bekteshi did not move for a COA in the district court, and the district court did not rule on whether to grant or deny him a COA. We assume without deciding that we therefore lack jurisdiction over this appeal pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, which has language similar to former Rule 22 of the Federal Rules of Appellate Procedure. See Cardenas v. Thaler, 651 F.3d 442, 444-45 & n.1 (5th Cir. 2011).

We nevertheless decline to remand this case to the district court for a COA ruling because Bekteshi has not addressed, and has thus waived any challenge to, the district court’s denial of his § 2255 motion on procedural grounds. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000); Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see also United States v. Ajah, 519 Fed.Appx. 304, 305 (5th Cir. 2013). This appeal is DISMISSED for lack of jurisdiction, and Bekteshi’s motion for a COA is DENIED as moot.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.