United States v. Jeffrey Denman

709 F. App'x 282

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 11, 2018
• Docket: 17-10565 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Jeffrey Denman, federal prisoner # 06640-078, seeks a certificate of appeala-bility (COA) to challenge the district court’s order transferring his motion, styled under Federal Rule of Civil Procedure 60(b), to this court as an unauthorized successive 28 U.S.C. § 2256 motion. The clerk of court docketed the transfer under case number 17-10491 and directed Denman to seek authorization to file a successive habeas petition. When he failed to do so, that action was dismissed. Meanwhile, Denman filed a notice of appeal from the transfer order, initiating this appeal.

The transfer of an unauthorized § 2255 motion is not a final order under 28 U.S.C. § 2253(c)(1)(B). See United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015). Therefore, “the appeal of such an order does not require a COA.” Id. According to Denman, with the benefit of liberal construction, the district court improperly construed his Rule 60(b) motion as an unauthorized successive § 2255 motion. A motion styled under Rule 60(b) that raises new “claims” or attacks the district court’s merits-based resolution of prior habeas claims should be construed as a successive habeas application. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 & n.4, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Williams v. Thaler, 602 F.3d 291, 304 (5th Cir. 2010). The arguments in Denman’s putative Rule 60(b) motion raised new claims, see Gonzalez, 545 U.S. at 531-32 & n.4, 125 S.Ct. 2641, and therefore the district court did not err in construing his motion as a successive § 2255 motion.

Accordingly, Denman’s motion for a COA is DENIED AS UNNECESSARY. The district court correctly transferred the application to this court and that order is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and 'is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.