                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAR 3, 2009
                              No. 08-13627                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 89-00057-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RICHARD MORRISON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (March 3, 2009)

Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:

     In United States v. Morrison, Nos. 92-2459 and 95-2226 (decided June 19,
1996) (unpublished), we affirmed appellant’s conviction and sentence for

possession with intent to distribute cocaine and the denial of his motions for new

trial. Since that time, appellant has sought relief from his conviction and sentence

under 28 U.S.C. § § 2241 and 2255, but has been unsuccessful.

      Before us is appellant’s appeal of the order the district court entered on May

28, 2008, which denied appellant’s February 2007 motion, captioned “Verified

Emergency Plea to Jurisdiction [etc.]” and his motions of August 2007 and April

2008, which the court deemed moot. The district court construed the February

2007 motion as an unauthorized and successive § 2255 motion and therefore

dismissed it for lack of jurisdiction.

      Appellant did not request a certificate of appealability (COA) to appeal the

issues raised in his February 2007 motion, and the district court does not appear to

have construed his notice of appeal as requesting a COA. Consequently, a COA

has not issued.

      We are obligated to review our subject matter jurisdiction sua sponte, even if

neither party contests it. Boone v. Sec’y, Dep’t of Corr., 377 F.3d 1315, 1316

(11th Cir. 2004) (per curiam). Thus, we must decide as a threshold issue whether

a COA must issue before we can entertain this appeal.

      Unless a habeas petitioner obtains a COA, he may not appeal “the final order



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in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court,” or “the final order in a proceeding under section

2255.” 28 U.S.C. § 2253(c)(1)(A)-(B); Slack v. McDaniel, 529 U.S. 473, 481-82,

120 S.Ct. 1595, 1602-03, 146 L.Ed.2d 542 (2000). If the district court’s order is

not a final order within the meaning of the statute, a COA is not required. See

Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam).

      An application for a COA must be considered first by the district court. Fed.

R. App. P. 22(b)(1); Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir.

1997). If a petitioner requires but does not expressly request a COA, the district

court should construe his notice of appeal as an application for a COA. Fed. R.

App. P. 22(b)(1); Edwards, 114 F.3d at 1084. If the district court does not rule

with respect to a COA, we remand so the district court may consider whether to

grant or deny a COA. Edwards, 114 F.3d at 1084-85.

      In Hubbard v. Campbell, 379 F.3d 1245, 1246 (11th Cir. 2004), Hubbard

filed a pleading in a case in which a final judgment had already been rendered.

The district court dismissed the pleading for lack of subject matter jurisdiction. Id.

We concluded that the dismissal was not a “final order in a habeas corpus

proceeding,” so Hubbard did not require a COA, and we had jurisdiction to review

the dismissal under 28 U.S.C. § 1291. Id. at 1247. We went on to hold that the



                                           3
district court had lacked subject matter jurisdiction to entertain Hubbard’s

pleading. Id.

       Appellant’s criminal case became final when we affirmed his conviction and

sentence and the time for seeking certiorari review in the Supreme Court ended.

The motion before us does not seek relief under § 2255. We therefore conclude

that a COA was not required so to enable us to review the district court’s decision

denying appellant’s motion for lack of subject matter jurisdiction. The district

court correctly determined that appellant was attempting to file a motion in a

criminal case that had long ago ended. The court therefore lacked jurisdiction to

entertain it.

       AFFIRMED.




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