USA v. Brenda Ford

Filing

UNPUBLISHED OPINION ORDER FILED. [16-11237 Dismissed for Lack of Jurisdiction] Judge: PEH , Judge: EHJ , Judge: GJC; denying as moot motion for certificate of appealability [8558971-2]; denying as moot motion to proceed IFP filed by Appellant Ms. Brenda Lee Ford [8297447-2] [16-11237]

Case: 16-11237

Document: 00514102266

Page: 1

Date Filed: 08/04/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11237
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 4, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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