USA v. Astrit Bekteshi

Filing

UNPUBLISHED OPINION ORDER FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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