United States v. Luis Garza

Case: 09-40591 Document: 00511058605 Page: 1 Date Filed: 03/22/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 22, 2010 No. 09-40591 Summary Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v.

LUIS ALEJANDRO GARZA, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:08-CV-496

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:* Luis Alejandro Garza, federal prisoner # 92434-079, convicted of four counts of violating federal drug laws, was sentenced to four concurrent 324- month terms of imprisonment. He filed a 28 U.S.C. § 2255 motion, requesting permission to file an out-of-time appeal and based on claimed ineffective assistance of counsel for failing to prosecute an appeal. The district court granted relief, and our court subsequently affirmed the convictions and Case: 09-40591 Document: 00511058605 Page: 2 Date Filed: 03/22/2010 No. 09-40591 sentences. United States v. Garza, 275 F. App’x 377 (5th Cir.), cert. denied, 129 S. Ct. 423 (2008).

Garza filed a second § 2255 motion, challenging claimed errors during his trial. The district court dismissed the motion for lack of jurisdiction, concluding: the motion was successive; and, Garza had failed to obtain authorization from our court to file it. In the light of a circuit split on the question, the district court granted Garza a certificate of appealability for whether a subsequent § 2255 motion is barred as a successive motion under § 2255(h) when it raises issues that could have been raised in the initial § 2255 motion.

Review of a district court’s dismissal of a § 2255 motion as an unauthorized successive motion is de novo. See United States v. Orozco-Ramirez, 211 F.3d 862, 865 (5th Cir. 2000). Garza’s contention that the district court erred in dismissing his second § 2255 motion as an unauthorized successive motion is foreclosed by our decision in Orozco-Ramirez. See id. at 869-71.

Because Garza’s claims regarding his trial were available to him when he filed his initial § 2255 motion, they are successive. See id. His reliance on United States v. West, 240 F.3d 456 (5th Cir. 2001), is misplaced: West clarified the procedure to be followed by a district court in granting an out-of-time appeal, id. at 458-59; it did not address whether a subsequent § 2255 motion is successive within the meaning of 28 U.S.C § 2244.

AFFIRMED.

Case: 09-40591 Document: 00511058605 Page: 3 Date Filed: 03/22/2010 No. [Case Number] EMILIO M. GARZA, Circuit Judge, specially concurring: I concur in the per curiam opinion in its entirety, since our circuit authority, based on United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000), requires us to find Garza’s second § 2255 petition to be an unauthorized successive motion.

However, the better view is expressed by the majority of circuits: a § 2255 petition is not considered to be successive if a prior § 2255 petition requests only to reinstate the petitioner’s right to appeal and does not attack the judgment on the merits. See, e.g., Johnson v. United States; 362 F.3d 636, 638 (9th Cir. 2004); In re Olabode, 325 F.3d 166, 172–73 (3d Cir. 2003); Vasquez v. Parrott, 318 F.3d 387, 392 n.1 (2d Cir. 2003); McIver v. United States, 307 F.3d 1327, 1332 (11th Cir. 2002); In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999); Shepeck v. United States; 150 F.3d 800, 800–01 (7th Cir. 1998); United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997).

Accordingly, I would encourage the en banc court to reconsider this issue and align our precedent with that of our sister circuits.