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

                                                FILED
                                                                 July 28, 2009
                               No. 08-40799
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ROBERT DANIEL DAVIS,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:07-CR-63-1


Before KING, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
      Robert Daniel Davis, federal prisoner # 97410-079, appeals the district
court’s order denying his motion to vacate. Davis’s motion to vacate sought to
challenge his 2008 conviction and sentence due to lack of subject matter and
territorial jurisdiction. Thus, the motion should have been construed as arising
under 28 U.S.C. § 2255. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.
2000). Although Davis’s direct appeal was pending when he filed the motion to



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40799

vacate, the district court had jurisdiction to consider the motion in exceptional
circumstances. See Woollard v. United States, 416 F.2d 50, 51 (5th Cir. 1968).
Nevertheless, because Davis’s motion is properly construed as arising under
§ 2255, this court lacks jurisdiction over the instant appeal absent a certificate
of appealability (COA) ruling in the district court.       See United States v.
Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997). The district court did not
construe Davis’s notice of appeal as a COA request. However, this court declines
to remand this case in light of the patent frivolity of Davis’s appeal. See United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Accordingly, the instant
appeal is DISMISSED for lack of jurisdiction.




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