     Case: 19-60111      Document: 00514910455         Page: 1    Date Filed: 04/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 19-60111
                                                                                  FILED
                                                                              April 10, 2019
                                                                             Lyle W. Cayce
In re: TIMOTHY PERRY,                                                             Clerk

                                                 Movant


                          Motion for an order authorizing
                      the United States District Court for the
                    Northern District of Mississippi to consider
                     a successive 28 U.S.C. § 2254 application


Before OWEN, HO, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Following the district court’s transfer of this case to our court, Timothy
Perry, Mississippi prisoner # T0478, moves for authorization to file a second or
successive 28 U.S.C. § 2254 application challenging his conviction and 30-year
sentence for sexual battery.         In transferring the case, the district court
determined that Perry’s § 2254 application was a second or successive § 2254
application.
       Perry raised his first proposed claim, a claim that the Mississippi
Supreme Court violated his due process rights when it denied his 2015 and
2017 motions for DNA testing, in an earlier motion for authorization. We
denied authorization as unnecessary for this claim because Perry’s motions for
DNA testing were denied after his original § 2254 application, and the claim

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-60111

was thus not successive for purposes of 28 U.S.C. § 2244(b)(3)(A). See Leal
Garcia v. Quarterman, 573 F.3d 214, 220-24 (5th Cir. 2009). This court’s
authorization to file a § 2254 application raising this claim is not necessary.
See id. at 224. Moreover, the district court’s transfer order was improper, and
we lack jurisdiction to consider the claim. See Adams v. Thaler, 679 F.3d 312,
321 (5th Cir. 2012).
      Perry’s second proposed claim is a request that the district court order
DNA testing pursuant to 18 U.S.C. § 3600. He complains that no DNA testing
has ever been done on fluid samples taken from the victim and asserts that
DNA testing would demonstrate his innocence.
      A motion for DNA testing that attacks the underlying conviction is
properly treated as a motion for leave to file a successive § 2254 application.
Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002). Therefore, Perry must
make a prima facie showing that the claim satisfies § 2244(b). See Felker v.
Turpin, 518 U.S. 651, 657 (1996); § 2244(b)(3)(C).
      Perry does not contend that this claim relies on a new rule of law. He
argues, however, that the absence of DNA testing qualifies as “new evidence”
because, if DNA tests were conducted, they would eliminate the possibility of
his guilt. To meet § 2244(b)(2)’s actual innocence provision, Perry must show
that “the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence,” § 2244(b)(2)(B)(i), and that
“the facts underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense,” § 2244(b)(2)(B)(ii). Perry has
not made a prima facie showing that his claim satisfies this standard. The




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                                No. 19-60111

sexual abuse of the victim occurred on more than one occasion over an extended
period of time. The fluid sample was taken at a single point in time.
      In light of the foregoing, IT IS ORDERED that Perry’s motion for leave
to file a successive § 2254 application is DENIED IN PART with respect to his
request for leave to raise a § 2254 claim seeking DNA testing and DISMISSED
IN PART with respect to his request for leave to raise a § 2254 claim that his
due process rights were violated when the Mississippi Supreme Court denied
his 2015 and 2017 motions for DNA testing. The district court’s transfer order
is VACATED IN PART with respect to Perry’s due process claim, and the case
is REMANDED to the district court for proceedings consistent herewith.




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