     Case: 17-30506      Document: 00514390567         Page: 1    Date Filed: 03/16/2018




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

                                      No. 17-30506
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 16, 2018

DONALD KEITH RUNNELS,                                                      Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

PRESLEY BORDELON, Warden, Avoyelles Marksville Detention Center,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:14-CV-503


Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       Donald Keith Runnels, Louisiana prisoner # 187611, seeks a certificate
of appealability (COA) to appeal the district court’s dismissal of his motion to
vacate an illegal sentence as an unauthorized successive 28 U.S.C. § 2254
application, the dismissal of his constructive Federal Rule of Civil Procedure
60(b)(1) motion as untimely, and the denial of his constructive Rule 60(b)(6)
motion on the merits. Additionally, Runnels seeks release pending review.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30506     Document: 00514390567    Page: 2   Date Filed: 03/16/2018


                                 No. 17-30506

      To obtain a COA, Runnels must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 483-84 (2000). He has not made the requisite showing. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Hughes v. Johnson, 191 F.3d 607,
613 (5th Cir. 1999).
      Nonetheless, because of the lack of a COA ruling by the district court, we
may assume without deciding that we lack jurisdiction over the issue. See
Cardenas v. Thaler, 651 F.3d 442, 443-44 (5th Cir. 2011); Rule 11(a), RULES
GOVERNING § 2254 CASES. However, we will decline to remand for the district
court to make the COA determination in the first instance if remand would be
futile and a waste of judicial resources. See United States v. Alvarez, 210 F.3d
309, 310 (5th Cir. 2000). Accordingly, we DISMISS this matter for lack of
jurisdiction because remand would be futile. We DENY the motions as moot.




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