UNITED STATES of America, Plaintiff-Appellee v. Robert Daniel DAVIS, Defendant-Appellant, 344 F. App'x 934

PER CURIAM: Robert Daniel Davis, federal prisoner # 97410-079, appeals the district court’s dismissal of his motion to vacate as an unauthorized successive 28 U.S.C. § 2255 motion. Davis’s motion to vacate sought to challenge his 2001 conviction and sentence due to lack of subject matter and territorial jurisdiction. Thus, the motion was properly construed as arising under § 2255. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.2000).

Because Davis’s motion was properly construed as arising under § 2255, this court lacks jurisdiction over the instant appeal absent a certificate of appealability (COA) ruling in the district court. See United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th Cir.1997). The district court did not construe Davis’s notice of appeal as a COA request. However, this court declines to remand this case in light of the patent frivolity of Davis’s appeal. -See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000). Accordingly, the instant appeal is DISMISSED for lack of jurisdiction. Pursuant to 5th Cm.

R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.