     Case: 14-20379      Document: 00513066898         Page: 1    Date Filed: 06/04/2015




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

                                    No. 14-20379
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 4, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff - Appellee

v.

HOWARD GRANT,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-424-3


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Howard Grant, former federal prisoner # 43671-279, was sentenced to
41-month concurrent terms of imprisonment following jury-trial convictions for
conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and
aiding and abetting in the same, in violation of 18 U.S.C. § 1347. See United
States v. Grant, 683 F.3d 639, 641 (5th Cir. 2012). He has been released from
prison but now serves concurrent terms of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-20379

      Grant challenges, pro se, the district court’s dismissal of his January
2014 28 U.S.C. § 2255 motion, filed while he was imprisoned. The motion was
dismissed as an unauthorized successive motion. E.g., United States v. Key,
205 F.3d 773, 774 (5th Cir. 2000). Additionally, Grant contests the denial of
his motion for reconsideration of the district court’s judgment of that dismissal.
See Fed. R. Civ. P. 59(e).
      Grant is barred from challenging these rulings unless he obtains a
certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(B). The district
court did not rule whether Grant was entitled to a COA. Although our court
has yet to decide, in the § 2255 context, whether a district court’s failure to rule
on a COA application deprives us of jurisdiction, “[o]ur precedents have held,
unequivocally, that . . . the lack of a ruling on a COA in the district court causes
this court to be without jurisdiction to consider the appeal”. Cardenas v.
Thaler, 651 F.3d 442, 444–45 (5th Cir. 2011) (emphasis, citation, and internal
quotation marks omitted). Because there is no COA ruling by the district
court, we assume, without deciding, that we lack jurisdiction over this appeal.
E.g., United States v. Ubani, 582 F. App’x 333, 333 (5th Cir. 2014) (per curiam);
see also Rule 11(a), Rules Governing § 2255 Proceedings.
      Regarding whether we should remand this matter to district court for it
to decide whether to grant a COA, Grant contends his January 2014 § 2255
motion was not successive because he filed no prior § 2255 motion; he claims
his prior (August 2012) motion was for reconsideration. Because the August
2012 motion was indisputably a § 2255 motion, Grant’s January 2014 § 2255
motion was successive.       See Burton v. Stewart, 549 U.S. 147, 153 (2007)
(holding that a proposed application is successive if it is another attempt to
contest “the same custody imposed by the same judgment” that was contested
in an earlier proceeding). We decline to remand in order for the district court



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                                 No. 14-20379

to make the COA determination in the first instance, as remand would be futile
and a waste of judicial resources. See, e.g., United States v. Alvarez, 210 F.3d
309, 310 (5th Cir. 2000). Concerning the standard for granting a COA, and
because Grant’s appeal is utterly baseless, no jurist of reason would debate
whether, or agree that, he should be encouraged to proceed with it. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
      DISMISSED.




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