United States v. Richard Morrison , 316 F. App'x 962 ( 2009 )


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  •                                                           [DO NOT PUBLISH]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    1996) (unpublished), we affirmed appellant’s conviction and sentence for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
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    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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