     Case: 14-50681      Document: 00512993448         Page: 1    Date Filed: 04/03/2015




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

                                    No. 14-50681
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                            April 3, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk


JOSE DE JESUS GUEL-RIVAS,
                                                 Plaintiff−Appellant,
versus
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
                                                 Defendant−Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CV-186




Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *

       Jose de Jesus Guel-Rivas, Texas prisoner # 1405933, is imprisoned for
aggravated sexual assault of a child younger than fourteen years old. He seeks
a certificate of appealability (“COA”) to appeal the district court’s construction


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50681

of his Federal Rule of Civil Procedure 60(b) motion as an unauthorized second
or successive 28 U.S.C. § 2254 application, and he requests the transfer of the
matter to this court. Additionally, he seeks authorization to proceed in forma
pauperis (“IFP”) on appeal.

      Because “a transfer order under 28 U.S.C. § 1631 is not a final order
within the meaning of [28 U.S.C.] § 2253(c)(1)(B), . . . the appeal of such an
order does not require a COA.” United States v. Fulton, -- F.3d --, 2015 U.S.
App. LEXIS 4173, at *10 (5th Cir. Mar. 16, 2015). Therefore, the motion for a
COA is DENIED as unnecessary.

      In his Rule 60(b) motion, Guel-Rivas claimed that his trial counsel had
provided ineffective assistance in the punishment phase of his trial by failing
to object to the prosecutor’s remarks about Guel-Rivas’s immigration status.
According to Guel-Rivas, Trevino v. Thaler, 133 S. Ct. 1911 (2013), permitted
the district court to consider the claim even if it remained unexhausted in state
court. Guel-Rivas asserts that his punishment-phase claim relates back to his
original § 2254 application wherein he alleged that his counsel provided inef-
fective assistance by failing to challenge a reference to his immigration status
during the guilt-innocence phase.

      The district court’s mention of such a claim in dismissing Guel-Rivas’s
§ 2254 application did not render the claim a part of that application. There-
fore, that court properly construed Guel-Rivas’s Rule 60(b) motion as a succes-
sive § 2254 application because it raised a new substantive claim. See Gonzalez
v. Crosby, 545 U.S. 524, 532 & n.4 (2005).

      In a separate proceeding before this court, the clerk of court informed
Guel-Rivas of the requirement that he file a motion for, and receive authoriza-
tion to file, his successive § 2254 application on his new claims. Guel-Rivas


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                                No. 14-50681

failed to file such a motion timely, so the clerk dismissed that proceeding.

      Because Guel-Rivas’s application―as presented to the district court―
was correctly determined to be a successive § 2254 application, we AFFIRM
the order of the district court. As noted, the proceeding for authorization to
file a successive § 2254 application has already been dismissed, which prevents
jurisdiction from vesting in a district court. We therefore REMAND to the
district court with instruction to dismiss Guel-Rivas’s § 2254 application for
want of jurisdiction. Guel-Rivas’s motion to proceed IFP is DENIED.




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