United States v. Clifford Ubani

Case: 14-20005 Document: 00512768562 Page: 1 Date Filed: 09/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20005
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, September 15, 2014
Lyle W. Cayce
Plaintiff-Appellee Clerk
v.
CLIFFORD UBANI,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-1943
Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Clifford Ubani, federal prisoner # 43685-279, has applied for a certificate
of appealability (COA) for an appeal from the district court’s order denying his
motion under Rule 60(b) of the Federal Rules of Civil Procedure seeking
reconsideration of the district court’s order denying his motion under 28 U.S.C.
§ 2255 challenging his convictions of conspiracy to commit health care fraud,
conspiracy to defraud the United States and to receive and pay health care
kickbacks, and paying and receiving health care kickbacks. See 28 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20005 Document: 00512768562 Page: 2 Date Filed: 09/15/2014
No. 14-20005
§ 2253(c)(1)(B); see also Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th
Cir. 2007).
Ubani did not seek a COA in the district court, nor did the district court
deny a COA in its order denying his Rule 60(b) motion. Due to the absence of
a COA ruling by the district court, we assume without deciding that we lack
jurisdiction over the instant appeal from that order. See Rule 11(a), RULES
GOVERNING § 2255 PROCEEDINGS; Cardenas v. Thaler, 651 F.3d 442, 443-44
& n.2 (5th Cir. 2011). We decline to remand this case to the district court for
a COA ruling because such a remand would be futile and a waste of judicial
resources. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
Because Ubani’s Rule 60(b) motion involved either new claims or
requested reconsideration of claims first asserted in the § 2255 motion, the
motion was successive. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005).
Because the motion was unauthorized, the district court lacked jurisdiction.
See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). In the absence of
such authorization, this court’s jurisdiction is limited to correction of the error
of the lower court in entertaining the motion, which may be raised sua sponte.
See Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
The appeal is DISMISSED for lack of jurisdiction, and Ubani’s motions
for a COA and for leave to proceed in forma pauperis are DENIED AS MOOT.
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