     Case: 14-20667      Document: 00513275954         Page: 1    Date Filed: 11/18/2015




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


                                      No. 14-20667                               FILED
                                                                         November 18, 2015
                                                                            Lyle W. Cayce
PETE JOE VILLEGAS,                                                               Clerk

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-4483


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Pete Joe Villegas moves for a certificate of appealability (COA) to appeal
the district court’s merits dismissal of his 28 U.S.C. § 2254 petition that
challenges the revocation of his parole on a state conviction for a narcotics
offense, denial of his motion for an order directing the clerk not to delay mailing
court orders, and denial of postjudgment relief under Federal Rules of Civil
Procedure 15(a) and 59(e). The district court denied a COA to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-20667

summary judgment but did not address the need for a COA in connection with
the other rulings.
      To get a COA, Villegas must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). A COA will issue if “reasonable jurists could debate
whether (or, for that matter, agree that)” Villegas’s § 2254 petition “should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
336 (internal quotation marks and citation omitted).
      A COA is required to appeal the denial of a motion to amend or alter a
judgment in a habeas case. Ochoa Canales v. Quarterman, 507 F.3d 884, 887-
88 (5th Cir. 2007). Because of the lack of a COA ruling by the district court on
this issue, we may assume without deciding that we lack jurisdiction over this
issue. See Rule 11(a), Rules Governing § 2254 Cases in the United States
District Courts. However, we will decline to remand in order 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).
      To the extent that Villegas’s motion to alter the judgment seeks to undo
the district court’s denial of habeas relief, it runs afoul of the prohibition
against unauthorized successive petitions. See Gonzalez v. Crosby, 545 U.S.
524, 532 (2005); Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010). The
district court’s summary judgment was based on a determination that no
grounds for habeas relief existed and was therefore on the merits.            See
Gonzalez, 545 U.S. at 532 & n.4. Because we had not authorized Villegas to
bring a successive application, the district court had no jurisdiction to
entertain a motion to set aside the denial of habeas relief.        See Crone v.



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                                  No. 14-20667

Cockrell, 324 F.3d 833, 836-38 (5th Cir. 2003). No jurist of reason would debate
whether, or agree that, Villegas should be encouraged to proceed further with
this claim. See Miller-El v. Cockrell, 537 U.S. at 336.
      To the extent that the motion to alter the judgment and to amend the
petition challenges a defect in the integrity of the proceedings, Villegas needs
a COA to proceed. See § 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.
5; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). However, we can
discern no legal points arguable on their merits in connection with this claim,
which is therefore frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Because his appeal on this point is baseless, no jurist of reason would
debate whether, or agree that, Villegas should be encouraged to proceed
further with it. See Miller-El v. Cockrell, 537 U.S. at 336. Consequently,
remand would be futile. See Alvarez, 210 F.3d at 310.
      Villegas requests a COA to appeal the district court’s rejection of his
motion for an order directing the clerk to refrain from delaying the mailing of
court orders. It is not clear that this order is a final order “in a proceeding
under section 2255” that requires a COA to appeal. § 2253(c)(1)B); see Ochoa
Canales, 507 F.3d at 888. In any event, the record shows that the clerk
complied with Federal Rule of Civil Procedure 77(d)(1). Thus, the claim that
it was error not to direct the clerk to avoid delay in mailing notice of orders is
patently frivolous. See Howard, 707 F.2d at 220. Consequently, no jurist of
reason would debate whether, or agree that, Villegas should be encouraged to
proceed further with it. See Miller-El, 537 U.S. at 336. Remand would thus
be futile. See Alvarez, 210 F.3d at 310.
      Villegas argues that he has made a debatable showing that he was
denied a constitutional right when the district court dismissed his petition on
summary judgment.       Villegas asserts that the district court abused its



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                                  No. 14-20667

discretion by preventing him from amending his complaint in 2007 and 2008
before judgment was entered. He does not argue that the petition states a
claim; instead, he repeatedly asserts that the unamended petition is fatally
defective. Villegas represented to the district court, when seeking to amend
before judgment was entered, that his purpose was merely to provide
additional specific factual allegations in support of his claim and additional
record references to assist the court.      Villegas advances no legal points
arguable on their merits in support of his claim that he should have been
allowed to amend his petition prior to entry of judgment. See Howard, 707
F.2d at 220; cf. Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).
Additionally, Villegas cites no authority establishing that he is entitled to a
COA in connection with his postjudgment amended petition, which was filed
without leave of court or consent of the respondent. This claim, too, is frivolous.
See Howard, 707 F.2d at 220.
      Villegas’s motion for remand to challenge the constitutionality of
§ 2253(c)(2) is unavailing. Villegas offers no convincing reason why he did not
present this challenge in the district court, and he cites no authority from this
circuit entitling him to a second chance to do so.
      The appeal is DISMISSED for lack of jurisdiction. Villegas’s motion for
a COA is DENIED as moot. Villegas’s motion for remand to challenge the
constitutionality of § 2253(c)(2) is DENIED also.




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