           Case: 13-13781    Date Filed: 09/10/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13781
                        Non-Argument Calendar
                      ________________________

     D.C. Docket Nos. 2:12-cv-08024-AKK; 2:92-cr-00011-AKK-MHH-1



DENNY ANTHONY WEST,

                                                           Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (September 10, 2014)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
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       On April 9, 1992, a jury convicted Denny West of witness tampering, in

violation of 18 U.S.C. § 1512(b)(1), and the District Court subsequently sentenced

him to prison for 100 months. We affirmed. United States v. West, 993 F.2d 1554

(11th Cir. 1993) (Table). Before us now are the District Court’s orders denying

West relief under 28 U.S.C. § 2255, and Federal Rules of Civil Procedure 59(e)

and 60(b). 1 The District Court denied West’s second Rule 59(e) motion to

reconsider as untimely, since he filed it more than 28 days after the entry of the

judgment. However, it construed West’s “Interlocutory Appeal” as a motion for a

certificate of appealability (“COA”), and granted a COA on the following issue:

       Whether West’s due process rights were violated when this court
       failed to issue a ruling regarding his petition pursuant to 28 U.S.C.
       § 2255 until fourteen years after he filed it.

       On appeal, West argues that the District Court violated his due process rights

by failing to rule on his initial § 2255 motion for over 14 years, while the

Government argues that we lack jurisdiction to consider West’s appeal because the

court granted a COA on an issue that West did not timely raise. It highlights that

West’s second Rule 59(e) motion, raising the due process claim, was not filed

within 28 days of the order denying his § 2255 motions, and contends that the

motion thus did not toll the time to file an appeal. Because the time limit to file an


       1
         West does not challenge the § 2255 dispositions. Accordingly, he cannot seek review
of those dispositions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014) (holding that a party abandons an issue by not raising it as an issue on appeal).
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appeal is jurisdictional and cannot be waived, it argues, the District Court erred in

granting a COA on the due process issue.

      In a § 2255 proceeding, an appeal may not be taken to the court of appeals

unless a circuit justice or judge issues a COA from a final order denying relief. 28

U.S.C. § 2253(c)(1)(B). A COA shall not issue unless the applicant has made a

substantial showing of the denial of a constitutional right, and the COA must

indicate which specific issue or issues satisfy that showing. Id. § 2253(c)(2)-(3).

      A motion to alter or amend a judgment must be filed within 28 days of the

entry of the judgment. Fed. R. Civ. P. 59(e). If a party timely files a Rule 59(e)

motion to alter or amend the judgment, the time to file an appeal runs from the

entry of the order disposing of the motion. Fed. R. App. P. 4(a)(4)(A). In a civil

case, an appellant has 60 days to file an appeal after entry of the judgment or order

if one of the parties is the United States. Fed. R. App. P. 4(a)(1)(B)(i).

      We have jurisdiction over this appeal for two reasons: (1) West’s August 13,

2013 “Interlocutory Appeal” was a timely appeal of both (a) the District Court’s

May 13, 2013 order denying his § 2255 motions and Rule 60(b) motion, and

(b) the court’s July 18, 2013 order denying his first Rule 59(e) motion; and (2) the

court granted a COA.

      A COA is required to appeal the denial of a Rule 59(e) motion. Perez v.

Sec’y, Fla. Dep’t of Corr., 711 F.3d 1263, 1264 (11th Cir. 2013). Where the


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district court denies relief on procedural grounds, the petitioner seeking a COA

must show that: (1) jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right; and (2) jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d

542 (2000) (emphasis added). Thus, where a petition is denied on procedural

grounds, determining whether a COA should issue has two parts, one directed at

the underlying constitutional claims and one directed at the district court’s

procedural ruling. Id. at 484-85, 120 S.Ct. at 1604.

      Appellate review is generally limited to issues specified in the COA.

Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). However, we

have vacated a district court’s COA as improvidently granted. See Bell v. Fla.

Att’y Gen., 614 F.3d 1230, 1232 (11th Cir. 2010). In Bell, the District Court erred

in failing to specify whether reasonable jurists would find it debatable that Bell’s

§ 2254 petition stated a valid claim for the denial of a constitutional right, and Bell

made no such showing in his notice of appeal, which the District Court construed

as a COA. Id. Thus, we vacated the court’s order granting a COA as

improvidently granted, without prejudice to re-application, and instructed the court

to consider what claims, if any, Bell’s petition raised that made a substantial

showing of the denial of a constitutional right, in addition to whether reasonable


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jurists would find it debatable whether the district court was correct in its

procedural ruling on timeliness. Id.

      We also vacated granting a COA when the issue upon which it granted the

COA conflicted with the District Court’s dismissal of the appellant’s habeas

petition as time-barred. See Ross v. Moore, 246 F.3d 1299, 1300 (11th Cir. 2001).

In Ross, the district court denied the petitioner’s § 2254 habeas corpus petition as

time-barred under the statute of limitations, but granted a COA on the issue of

whether the petitioner was denied the right to due process under the Fifth and

Fourteenth Amendments. Id. We held that “[w]hen a district court dismisses a

petition as time-barred, it is inappropriate to grant a COA on the constitutional

claim[,] e.g., the due process claim in this case.” Id.

      Here, the District Court erred in failing to state whether reasonable jurists

would find it debatable whether it was correct in its procedural ruling, that West’s

second Rule 59(e) motion raising his due process claim was untimely. See Slack,

529 U.S. at 484-85, 120 S. Ct. at 1604; cf. Bell, 614 F.3d at 1232. And as in Ross,

the District Court denied West’s Rule 59(e) motion as untimely, but granted a

COA on the constitutional claim. Cf. Ross, 246 F.3d at 1300. Accordingly,

because the COA does not indicate whether reasonable jurists would find debatable

its procedural ruling denying West’s Rule 59(e) motion as untimely, we vacate the

order granting a COA and remand with the instruction that the District Court


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consider what claims, if any, West’s motion raised that made a substantial showing

of the denial of a constitutional right, in addition to whether reasonable jurists

would find it debatable whether the court was correct in its procedural ruling on

timeliness. See Bell, 614 F.3d at 1232. If both prongs are not satisfied, a COA

should not issue. See Slack, 529 U.S. at 484-85, 120 S.Ct. at 1604.

      VACATED AND REMANDED.




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