USA v. Astrit Bekteshi


UNPUBLISHED OPINION ORDER FILED. [16-40207 Dismissed for Lack of Jurisdiction] Judge: PRO, Judge: JWE, Judge: GJC; denying as moot motion for certificate of appealability filed by Appellant Mr. Astrit Bekteshi [8180824-2] [16-40207]

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Case: 16-40207 Document: 00513864820 Page: 1 Date Filed: 02/06/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-40207 FILED February 6, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ASTRIT BEKTESHI, also known as Ermir Muhamet Gonxhi, also known as Erimi Goxhaj, also known as Miri, also known as Billy, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:14-CV-105 USDC No. 4:09-CR-193-2 Before OWEN, ELROD, and COSTA, Circuit Judges. PER CURIAM: * Astrit Bekteshi, federal inmate # 41709-424, pleaded guilty to conspiring to distribute or possess with the intent to distribute cocaine, heroin, ecstasy, or marijuana and was sentenced to 135 months of imprisonment. Bekteshi seeks a certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-40207 Document: 00513864820 Page: 2 Date Filed: 02/06/2017 No. 16-40207 An appeal may not be taken from a final order in a § 2255 proceeding unless a district court judge or circuit justice issues a COA. 28 U.S.C. § 2253(c)(1)(B). Bekteshi did not move for a COA in the district court, and the district court did not rule on whether to grant or deny him a COA. We assume without deciding that we therefore lack jurisdiction over this appeal pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, which has language similar to former Rule 22 of the Federal Rules of Appellate Procedure. See Cardenas v. Thaler, 651 F.3d 442, 444-45 & n.1 (5th Cir. 2011). We nevertheless decline to remand this case to the district court for a COA ruling because Bekteshi has not addressed, and has thus waived any challenge to, the district court’s denial of his § 2255 motion on procedural grounds. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000); Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see also United States v. Ajah, 519 F. App’x 304, 305 (5th Cir. 2013). This appeal is DISMISSED for lack of jurisdiction, and Bekteshi’s motion for a COA is DENIED as moot. 2

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