     Case: 16-30152      Document: 00513997696         Page: 1    Date Filed: 05/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-30152                                 FILED
                                  Summary Calendar                           May 18, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
DAVID PATTERSON,

                                                 Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1397


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       In 1984, a jury convicted David Patterson, Louisiana prisoner # 105235,
of second degree murder, and he was sentenced to life imprisonment without
benefit of probation, parole, or suspension of sentence. Prior to the enactment
of the Antiterrorism and Effective Death Penalty Act (AEDPA), Patterson filed
two 28 U.S.C. § 2254 applications. Patterson’s first § 2254 application was
rejected on the merits, and his second was dismissed as an abuse of the writ.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-30152

Following the enactment of the AEDPA, Patterson filed three § 2254
applications that the district court construed as unauthorized successive
§ 2254 applications and transferred to this court.        We denied Patterson
authorization to file successive § 2254 applications. Patterson has also filed
with this court two motions for authorization, which were also denied.
Patterson subsequently filed in the district court two Federal Rule of Civil
Procedure 60(b) motions challenging the denials of his § 2254 applications filed
between 1994 and 2007. The district court construed the motions, in part, as
an unauthorized successive § 2254 application and transferred it to this court.
Patterson appeals the district court’s transfer order.
      Patterson contends that, because State v. Cordero, 993 So. 2d 203, 204
(La. 2008), invalidated the state court judgments underlying his prior § 2254
applications, the judgments denying those § 2254 applications should be set
aside under Rule 60(b)(5). He argues that, because his motions attacked a
procedural defect in the district court’s handling of his prior habeas
proceedings rather than a merits determination, they were true Rule 60(b)
motions. He therefore argues that the district court erred by construing his
motions as an unauthorized successive § 2254 application.
      The district court’s 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); see also United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).
When postjudgment motions are filed concerning the denial of a § 2254
application, a court must determine whether the movant is seeking to file a
second or successive § 2254 application. Gonzalez v. Crosby, 545 U.S. 524, 529-
30 (2005). A Rule 60(b) motion that raises new substantive claims or attacks
the district court’s merits-based resolution of prior § 2254 claims should be
construed as a successive § 2254 application. Id. at 532 & n.4. If a Rule 60(b)



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                                 No. 16-30152

motion is truly a successive § 2254 application, a district court lacks
jurisdiction to consider it absent authorization from this court.            See
In re Sepulvado, 707 F.3d 550, 556 (5th Cir. 2013).
      Here, the district court implicitly construed Patterson’s motions, in part,
as true Rule 60(b) motions and denied them on the merits. The district court’s
implicit consideration of Patterson’s motions as true Rule 60(b) motions
undermines his arguments on appeal.           Patterson offers no meaningful
argument against the district court’s basis for determining that the motions
were, in part, successive.      Accordingly, the district court’s ruling is
AFFIRMED.




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