     Case: 10-41130 Document: 00511485644 Page: 1 Date Filed: 05/23/2011




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

                                                 FILED
                                                                            May 23, 2011
                                     No. 10-41130
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CIRO CAICEDO-OBANDO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 5:09-CV-119
                              USDC No. 5:08-CR-226-2


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       In 2008, Ciro Caicedo-Obando, federal prisoner # 82561-179, pleaded
guilty to conspiracy to possess with intent to distribute in excess of five
kilograms of cocaine and was sentenced to 262 months of imprisonment and five
years of supervised release. More than four months after the denial on the
merits and subsequent dismissal of his 28 U.S.C. § 2255 motion, Caicedo-Obando
submitted several copies of a “notice to file an out of time direct appeal” (the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-41130 Document: 00511485644 Page: 2 Date Filed: 05/23/2011

                                  No. 10-41130

notice-motion) to the district court. One copy of the notice-motion was forwarded
to this court as a notice of appeal from the § 2255 dismissal.           This court
dismissed the appeal for lack of jurisdiction because the notice of appeal was
untimely. United States v. Caicedo-Obando, No. 10-40692 (5th Cir. Sept. 13,
2010) (unpublished).
      The district court then construed one copy of the notice-motion as a motion
to extend the time to file an appeal from its dismissal of Caicedo-Obando’s § 2255
motion and denied it as untimely and, in light of this court’s dismissal of the
appeal, as moot. Caicedo-Obando seeks a certificate of appealability (COA) to
appeal the district court’s denial of this notice-motion. Caicedo-Obando raises
two arguments challenging the district court’s dismissal of his § 2255 motion;
one argument raised for the first time in his COA brief alleging a new claim of
ineffective assistance of counsel at sentencing; and one argument challenging
the district court’s failure to construe the notice-motion as raising a new claim
that counsel was ineffective for disregarding Caicedo-Obando’s direction to
appeal the underlying sentence and failure to consolidate that new claim with
the previously denied § 2255 motion.
      If Caicedo-Obando’s notice-motion had sought only to extend the time to
appeal the dismissal of the § 2255 motion, as the district court construed it, a
COA might not be required. See Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir.
2002). However, as Caicedo-Obando argues, his notice-motion did not seek to
extend the time to appeal the denial of the § 2255 motion; it sought to reopen the
time to appeal directly from the judgment of conviction and sentence. The
notice-motion, which raised a new claim of the denial of effective assistance of
counsel on direct appeal, should have been construed as a second or successive
§ 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). A COA is
required to appeal the denial of such motion. See Ochoa Canales v. Quarterman,
507 F.3d 884, 888 (5th Cir. 2007); see also 28 U.S.C. § 2253(c)(1)(B).



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                                  No. 10-41130

      The district court did not determine whether a COA should issue from the
denial of the notice-motion. Accordingly, we lack jurisdiction over the present
appeal. See Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir. 1998); United
States v. Youngblood, 116 F.3d 1113, 1114 (5th Cir. 1997).
      This court declines to remand this case to the district court for a COA
ruling in light of the patent frivolity of Caicedo-Obando’s appeal. See United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). The appeal is frivolous
because the notice-motion was a successive § 2255 motion that the district court
did not have jurisdiction to consider without authorization from this court, which
was neither sought nor given. See 28 U.S.C. § 2244(b)(3); § 2255(h); see also
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Caicedo-Obando’s
arguments challenging the dismissal of the underlying § 2255 motion and his
new claim of ineffective assistance of counsel at sentencing are not properly
before this court on appeal from the denial of the notice-motion.
      Accordingly, the instant appeal is DISMISSED for lack of jurisdiction.
Caicedo-Obando’s motions for a COA and for leave to proceed in forma pauperis
on appeal are DENIED as MOOT.




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