     Case: 16-11237      Document: 00514102266         Page: 1    Date Filed: 08/04/2017




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

                                    No. 16-11237
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                            August 4, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

BRENDA LEE FORD,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:15-CV-180


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Brenda Lee Ford, federal prisoner # 26255-077, was convicted for
conspiracy to possess with intent to distribute cocaine and possession with
intent to distribute cocaine. Ford filed a motion for production of records of the
juror selection in her criminal trial.         Ford asserted that she required the
records to support her claim that she was deprived of her constitutional right
to a fair and impartial jury trial because of purposeful discrimination in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11237     Document: 00514102266     Page: 2   Date Filed: 08/04/2017


                                  No. 16-11237

excluding blacks from her jury. The district court construed the motion for
production as a motion seeking relief under 28 U.S.C. § 2255 and dismissed it
without prejudice for lack of jurisdiction for failure to obtain authorization
from this court to file a successive § 2255 motion. The district court also denied
Ford’s motion to proceed in forma pauperis (IFP) on appeal finding that the
appeal was frivolous, filed in bad faith, and without merit. Ford’s notice of
appeal is construed as a motion for a certificate of appealability (COA) to
appeal the district court’s denial of her motion. See FED. R. APP. P. 22(b)(2).
She has also filed a motion for leave to proceed IFP on appeal.
      A COA is required to appeal the denial of an unauthorized successive
§ 2255 motion. See Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). The
district court did not determine whether Ford was entitled to a COA. Because
the district court has not issued a COA ruling, we assume without deciding
that we lack jurisdiction over the appeal. See Rule 11(a), Rules Governing
§ 2255 Proceedings; Cardenas, 651 F.3d at 444 & nn.1-2. Nevertheless, we
decline to remand this case to the district court for a COA ruling because a
remand would be futile. See United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000).    Ford’s motion was properly construed as an unauthorized
successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005);
United States v. Hernandes, 708 F.3d 680, 681 (5th Cir. 2013). Because the
district court lacked jurisdiction to consider Ford’s motion, we lack jurisdiction
to review the denial of that motion on the merits. See United States v. Key, 205
F.3d 773, 774-75 (5th Cir. 2000).
      Accordingly, the appeal is DISMISSED for lack of jurisdiction, and
Ford’s motions for a COA and leave to proceed IFP are DENIED AS MOOT.




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