United States v. Moore

Case: 20-10069     Document: 00515741750         Page: 1     Date Filed: 02/11/2021

              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                      February 11, 2021
                                  No. 20-10069                          Lyle W. Cayce
                                Summary Calendar                             Clerk

   United States of America,



   Kevin D. Moore,


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:19-CV-2919
                           USDC No. 3:07-CR-125-1

   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
          Kevin D. Moore, federal prisoner # 36285-177, was convicted by a jury
   of shipping child pornography as well as possession of child pornography and
   was sentenced to 360 months of imprisonment. The district court denied his

            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10069      Document: 00515741750          Page: 2    Date Filed: 02/11/2021

                                    No. 20-10069

   28 U.S.C. § 2255 motion, and a judge of this court denied his motion for a
   certificate of appealability (COA). Moore then filed a second § 2255 motion,
   raising a claim of ineffective assistance of counsel. The district court
   construed his motion as an unauthorized successive § 2255 motion and
   transferred it to this court. We denied Moore’s motion for authorization to
   file a successive § 2255 motion in Case No. 19-11345.
          After the district court transferred his motion, Moore filed a Federal
   Rule of Civil Procedure 59(e) motion to alter or amend the judgment,
   contending that his § 2255 motion was not successive because it raised a
   claim that could not have been raised in his original § 2255 motion in that it
   was premised on evidence that he discovered after the final adjudication of
   his original § 2255 motion. The district court denied the Rule 59(e) motion,
   and Moore timely noticed his appeal from that order. Moore’s notice of
   appeal places the propriety of the underlying judgment, the transfer order,
   before this court. See Martinez v. Johnson, 

104 F.3d 769

, 771 (5th Cir. 1997).
   The transfer order is an appealable collateral order over which this court has
   jurisdiction, see In re Bradford, 

660 F.3d 226

, 228-29 (5th Cir. 2011); a COA
   is not required, see United States v. Fulton, 

780 F.3d 683

, 688 (5th Cir. 2015).
          On appeal, Moore contends that his § 2255 motion was not successive
   for the same reasons he advanced in his Rule 59(e) motion. A second or
   successive motion is one that “1) raises a claim challenging the petitioner’s
   conviction or sentence that was or could have been raised in an earlier
   petition; or 2) otherwise constitutes an abuse of the writ.” Leal Garcia
   v. Quarterman, 

573 F.3d 214

, 220 (5th Cir. 2009) (internal quotation marks
   and citation omitted). If the purported defect existed, or the claim was ripe,
   at the time of the prior petition, the later application is likely to be held

Id. at 222.

If, however, the purported defect did not arise, or the
   claim did not ripen, until after the conclusion of the previous application, the
   later application based on that defect may be non-successive.

Id. 2

Case: 20-10069      Document: 00515741750           Page: 3     Date Filed: 02/11/2021

                                     No. 20-10069

          In this case, the defect of which Moore complains—his trial counsel’s
   ineffective assistance for failure to convey a plea offer—necessarily existed
   at the time Moore filed his prior § 2255 motion. That the evidence of that
   defect was not discovered—or could not have been discovered—until after
   he filed his first § 2255 motion does not mean that the claim was not
   previously available. See Leal 

Garcia, 573 F.3d at 221-22

. Thus, his § 2255
   motion is successive. Because his § 2255 motion was indeed successive and
   filed without our authorization, the district court did not err in transferring it
   for lack of jurisdiction. See 

Fulton, 780 F.3d at 686

. Accordingly, we
   AFFIRM the district court’s transfer order.
          Given Moore’s repeated efforts to raise the same claim, he is
   CAUTIONED that future frivolous, repetitive, or abusive filings may
   result in sanctions, including monetary penalties or restrictions on his ability
   to file pleadings in this court or any court subject to this court’s jurisdiction.


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