     Case: 11-60049     Document: 00511629654         Page: 1     Date Filed: 10/07/2011




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

                                                                            FILED
                                                                          October 7, 2011

                               No. 11-60049 & 11-60054                     Lyle W. Cayce
                                                                                Clerk

In re: MALCOLM CHARLES HARTZOG,

                                                  Movant


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MALCOLM CHARLES HARTZOG,

                                                  Defendant - Appellant



                    Appeal from the United States District Court
            for the Southern District of Mississippi, Hattiesburg Division
                        USDC Nos. 2:04-cr-00022-LG-JMR-2


Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Proceeding pro se, Malcolm Charles Hartzog appeals the district court’s
order transferring his 28 U.S.C. § 2255 motion to this Court. Hartzog contends
that the district court erred in treating his motion as successive. Concluding


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60049 & 11-60054

that his motion is successive, we affirm the district court’s transfer order.
Additionally, we deny his request for a Certificate of Appealability.
       I.     PROCEDURAL HISTORY
       Hartzog was convicted in 2005 of conspiracy to possess with intent to
distribute a controlled substance (count 1) and of possession with intent to
distribute a controlled substance (count 3). The district court sentenced Hartzog
to a term of imprisonment of life for count 1 and to a 360-month term of
imprisonment for count 3.          He was ordered to serve a 10-year period of
supervised release for count 1 and a six-year period of supervised release for
count 3. The conviction and sentence were affirmed on direct appeal. United
States v. Hartzog, 189 F. App’x 340, 350 (5th Cir 2006). Hartzog’s first section
2255 motion was denied, and this Court denied a Certificate of Appealability
(COA). United States v. Hartzog, 2009 WL 774362, at *6 (S.D. Miss. Mar. 20,
2009); United States v. Hartzog, No. 09-60286 (5th Cir. May 4, 2010).
       Thereafter, in district court, Hartzog filed a “motion to set aside void
judgment,” invoking Federal Rule of Civil Procedure 60(b)(4) & (6). Hartzog also
filed another section 2255 motion. The district court construed the motions
(Rule 60(b) & § 2255) together as an unauthorized section 2255 motion and
ordered the motion transferred to this Court pursuant 28 U.S.C. § 1631.
Hartzog, proceeding pro se, gave timely notice of his appeal from the district
court’s transfer order.1 The district court denied a COA. Hartzog now requests
a COA; however, he expressly states that he is not moving this Court for leave
to file a second or successive section 2255 motion in the district court.




       1
         We note that we have jurisdiction over the appeal of an order transferring a § 2255
motion to this Court when the § 2255 motion is also pending before this Court. In re: Cecil
Lumont Bradford, Nos. 10-11236 & 10-11249 (5th Cir. Oct. 7, 2011).

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                            No. 11-60049 & 11-60054

      II.   ANALYSIS
      Hartzog contends that the district court erred in holding that his § 2255
motion and his Rule 60(b) motion are successive. He asserts that the claims he
raised in the current § 2255 motion were raised in his previous § 2255 motion
but that the district court failed to address them during the previous
proceedings. We have before us Hartzog’s appeal of the district court’s order
transferring his § 2255 motion to this Court. Hartzog also requests a COA;
however, he expressly does not seek leave to file a successive § 2255 motion.
      We must now determine whether the district court properly construed his
§ 2255 motion to be a successive one. Before a second or successive section 2255
motion may be filed in the district court, the movant must request this Court for
an order authorizing the district court to consider the motion. Williams v.
Thaler, 602 F.3d 291, 301 (5th Cir. 2010); see also § 2255(h); 28 U.S.C. §
2244(b)(3)(A) & (C).    Claims presented in prior § 2255 motions must be
dismissed. See Williams, 602 F.3d at 301; see also § 2244(b)(1).
      A movant’s failure to seek authorization from this Court before filing a
second or successive section 2255 motion acts as a jurisdictional bar. See
Williams, 602 F.3d at 301 (citing United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000)). If a second or successive section 2255 motion is filed in the district
court before leave of this Court has been obtained, the district court may either
dismiss the motion for lack of jurisdiction, or it may transfer the motion to this
Court. See Key, 205 F.3d at 774. In this case, the district court elected to
transfer the unauthorized section 2255 motion to this Court.
      A Rule 60(b) motion is considered a successive collateral attack if it
challenges an earlier denial of relief on the merits or raises new claims.
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). A Rule 60(b) motion is not
successive if it challenges “not the substance of the federal court’s resolution of



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                            No. 11-60049 & 11-60054

a claim on the merits, but some defect in the integrity of the federal habeas
proceedings.” Id.
      Hartzog contended in both his Rule 60(b) and section 2255 motion that, in
ruling upon his original section 2255 motion, the district court failed to decide
his prosecutorial misconduct claims related to “vouching and improper
argument” and his related ineffective assistance of counsel claims, (Claims (7),
(10), and (11)). Because the claims were not ruled upon, he contends, his Rule
60(b) and section 2255 motions were not successive. These contentions are
without merit.
      In Claim (7) of the original section 2255 motion, Hartzog complained that
he had been “denied a fair trial by the cumulative effect of prosecutorial
misconduct previously described and by other prosecutorial misconduct.”
Hartzog noted that he had argued in his Motion to Suppress that the
government “should not be allowed to piggyback evidence of the cocaine from
Jackie Newsome charged in Count 3 in order to show Hartzog’s guilt on the
conspiracy” count (Count 1). Hartzog complained in his section 2255 motion that
the prosecutor argued improperly “that if Hartzog was guilty of possessing the
powder cocaine charged in Count 3, he was automatically guilty of Count 1.”
Hartzog complained also that the prosecutor improperly “vouched for the
credibility of the witnesses.”
      The “previously described” acts of prosecutorial misconduct were set forth
in Claims (3), (4), and (5). In Claim (3), Hartzog complained that the prosecutor
argued to the jury matters not in evidence related to telephone conversations
that must have occurred between government witness Gregory James and
Hartzog.    In Claim (4), Hartzog complained that the prosecutor had
mischaracterized an out-of-court statement of Lesia Black that Hartzog sold her
crack, and that the prosecutor had argued improperly that this statement was
evidence of Hartzog’s guilt.     In Claim (5), Hartzog complained that the

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                            No. 11-60049 & 11-60054

prosecutor had mischaracterized the testimony of Gregory Bourne in an effort
to convince the jury that Hartzog knew that his buyers were distributing crack.
      Hartzog contended in Claim (10) that he received ineffective assistance of
counsel at trial because counsel failed to object to several instances of
prosecutorial misconduct,
      such as the government’s “recreating” the content of cell phone calls
      purportedly made between Hartzog and Newsome where there was
      no evidence as to what was said on these calls; counsel failed to
      object to the government’s implication, during Lesia Black’s
      testimony, that Black had previously said that she purchased crack
      from Hartzog; counsel failed to object again when the government
      argued that Black’s testimony supported the charge of conspiracy to
      distribute crack; counsel failed to object to the mischaracterization
      on closing of Gregory Bourne’s testimony regarding Hartzog’s
      knowledge that Bourne was selling crack and the government’s
      serious violation of the court’s sequestration order.

Hartzog contended in Claim (11) that appellate counsel rendered ineffective
assistance in failing to assert these prosecutorial misconduct claims on direct
appeal.
      In denying the section 2255 motion, the district court determined that
Claims (3), (4), (5), and (7) were procedurally barred because they were not
asserted on direct appeal, and Hartzog had failed to show cause for failing to
raise them. Hartzog, 2009 WL 774362 at *3. In determining that trial counsel
had not rendered ineffective assistance, the district court noted:
      Hartzog complains that trial counsel failed to object to several
      instances of prejudicial prosecutorial misconduct such as the
      government’s “recreating” the content of cell phone calls purportedly
      made between Hartzog and Newsome where there was no evidence
      as to what was said on these calls; the government’s implication,
      during Lesia Black’s testimony, that Black had previously said that
      she purchased crack from Hartzog; the government’s argument that
      Black’s testimony supported the charge of conspiracy to distribute
      crack; the government’s closing argument mischaracterization of
      Gregory Bourne’s testimony regarding Hartzog’s knowledge that

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                                 No. 11-60049 & 11-60054

       Bourne was selling crack; and the government’s violation of the
       court’s sequestration order.

Id. at *4 (emphasis added). The district court specifically discussed these claims,
and determined that the prosecutor was merely asking the jury to draw
inferences from the evidence. Id. at *4-5. Because the comments were not
improper, the court reasoned, counsel had not rendered ineffective assistance in
failing to object. Id. at *5. Further, by using the phrase “such as” with respect
to the list of issues, the district court clearly intended to dispose of all the
prosecutorial misconduct claims.
       In rejecting Hartzog’s claims of ineffective assistance of appellate counsel,
the district court acknowledged Hartzog’s claims as follows:
       Hartzog argues that to the extent that any issues raised in this
       motion were insufficiently raised on appeal, appellate counsel could
       have raised them, and his failure to recognize the issues or raise
       them on appeal constitutes ineffective assistance of counsel so that
       Hartzog is not barred from raising them in this post-conviction
       proceeding.

Id. The court then stated that counsel does not render deficient performance by
“not raising every non-frivolous issue on appeal.” Id. (citing United States v.
Williamson, 183 F.3d 458, 462 (5th Cir. 1999)). Further, the court recognized
that Hartzog had the burden of showing that the Fifth Circuit would have
granted relief had counsel raised the issue on appeal.2 Finally, in its conclusion,
the district court expressly stated that it had “analyzed all of Hartzog’s grounds
for relief and had found none that is meritorious.” Id. at *6. Clearly, the district
court intended to dispose of all of the issues raised by Hartzog. The court

       2
         Moreover, although the district court did not say so expressly, it is axiomatic that
ineffective assistance of counsel may constitute cause for a procedural default. See United
States v. Conley, 349 F.3d 837, 839 n.1 (5th Cir. 2003). In stating that Hartzog had not shown
cause for failing to raise his prosecutorial misconduct claims on direct appeal, the district court
impliedly concluded that appellate counsel had not rendered ineffective assistance. See
Hartzog, 2009 WL 774362 at *3.

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                                No. 11-60049 & 11-60054

further noted that the government had presented “overwhelming evidence of
Hartzog’s guilt,” and Hartzog had “shown no reasonable probability that, but for
the alleged deficiencies of counsel, the outcome of his trial or appeal would have
been different.” Id. Thus, Hartzog’s contention that the district court failed to
dispose of Claim (7) and the related ineffective-assistance claims is without
merit.
       Hartzog relies on Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45
(1998), in which the Court held that a claim of incompetency to be executed,
raised in a second habeas application after an original habeas application
asserting a claim of incompetency was dismissed by the district court as
premature, was not a successive application. As set forth above, the district
court actually ruled on the claims Hartzog raised in the previous section 2255
motion. Hartzog’s reliance on Stewart is therefore misplaced.
       Because the instant section 2255 motion asserted claims that have already
been adjudicated on the merits, and because the Rule 60(b) motion challenged
the district court’s prior denial of relief, the district court did not err in
determining that the Rule 60(b) motion and the companion section 2255 motion
were successive and in transferring the motions to this Court.3 See Gonzalez,
545 U.S. at 532. We therefore AFFIRM the district court’s order transferring the
case to this Court.
       We DENY Hartzog’s request for a COA because Hartzog has not shown
that jurists of reason could debate whether the district court erred in construing




       3
          In the alternative, for purposes of this appeal, we will assume arguendo that
Hartzog’s claim in his Rule 60(b) motion that the district court failed to rule on certain claims
constitutes an argument that there was a “defect in the integrity” of the habeas proceedings
and thus, the Rule 60(b) motion was not successive. Gonzalez, 545 U.S. at 532. Any error in
transferring the motion was harmless because, as previously set forth, the Rule 60(b) motion
is without merit and should be denied.

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                            No. 11-60049 & 11-60054

the § 2255 motion as a successive section 2255 motion. See Slack v. McDaniel,
529 U.S. 473, 484 (2000).




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