Case: 16-31161      Document: 00514191513         Page: 1    Date Filed: 10/11/2017




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


                                      No. 16-31161
                                                                                    FILED
                                                                             October 11, 2017
                                                                               Lyle W. Cayce
CHARLES LEE,                                                                        Clerk

                                                 Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1185


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Charles Lee, Louisiana prisoner # 386633, is serving concurrent
sentences of 49½ years of imprisonment, which were imposed following his
1998 convictions on two counts of armed robbery. His previous conviction of
possession of a stolen vehicle, a crime he committed while he was 17 years old,
was used to enhance his sentences in the armed robbery cases. Lee’s 28 U.S.C.
§ 2254 petition was dismissed in May 2013.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-31161    Document: 00514191513     Page: 2   Date Filed: 10/11/2017


                                 No. 16-31161

      In January 2016, Lee filed a motion under Federal Rule of Civil
Procedure 60(b) seeking relief from the judgment dismissing his § 2254
petition. The district court denied the Rule 60(b) motion as untimely, and it
denied Lee’s motion for reconsideration.      Lee now seeks a certificate of
appealability (COA) to appeal the district court’s denial of his Rule 60(b)
motion and the related motion for reconsideration.
      Before he can appeal the denial of these motions, Lee must obtain a COA.
See Ochoa Canales v. Quarterman, 

, 888 (5th Cir. 2007). The
district court did not determine whether Lee 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
§ 2254 PROCEEDINGS; Cardenas v. Thaler, 

, 444 & nn.1-2 (5th Cir.
2011). Nevertheless, we decline to remand this case to the district court for a
COA ruling because the appeal is frivolous, and a remand would be futile. See
United States v. Alvarez, 

, 310 (5th Cir. 2000).
      In the alternative, even if we have jurisdiction over the appeal absent a
COA ruling in the district court, we would deny a COA. To obtain a COA, Lee
must make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Lee must establish that reasonable jurists would debate
that the district court abused its discretion in denying the motions. See Slack
v. McDaniel, 

, 484 (2000); Hernandez v. Thaler, 

,
427-28 (5th Cir. 2011). Lee has failed to make the required showing.
      Accordingly, the appeal is DISMISSED for lack of jurisdiction, and Lee’s
motion for a COA is DENIED AS MOOT.




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