     Case: 15-40402      Document: 00513371741         Page: 1    Date Filed: 02/05/2016




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

                                    No. 15-40402                                    FILED
                                  Summary Calendar                           February 5, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellant,

versus

STEVIE WAYNE JOHNSON,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:13-CV-223
                              USDC No. 9:99-CR-27




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *

       Stevie Johnson, federal prisoner # 33435-077, was convicted of conspir-
ing to possess cocaine with intent to distribute and possessing cocaine with


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40402

intent to distribute and is serving a 240-month sentence. The district court
determined that the instant filing was an unauthorized successive 28 U.S.C.
§ 2255 motion and dismissed it. Johnson requests a certificate of appealability
(“COA”) to appeal that dismissal. He insists that he did not file a § 2255 motion
and that he is entitled to relief on his claim that he is actually innocent because
he was prosecuted on the wrong indictment.

      Johnson did not seek a COA in the district court, nor did the district
court deny him a COA sua sponte. Because the district court has not made a
COA ruling, we assume without deciding that we lack jurisdiction over this
appeal. See Rule 11(a), RULES GOVERNING § 2255 PROCEEDINGS; Cardenas v.
Thaler, 651 F.3d 442, 443–44 & n. 2 (5th Cir. 2011). We decline to remand to
the district court for a COA ruling because a remand would be futile. See
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).          Rather, we
DISMISS for want of jurisdiction. See id.

      Contrary to Johnson’s belief, the label he placed on his pleading was not
dispositive. See Hernandez v. Thaler, 630 F.3d 420, 426–27 (5th Cir. 2011).
Because Johnson raised a claim grounded in an “error[] that occurred at or
prior to the sentencing,” the district court did not err by concluding that his
suit arose under § 2255. See Padilla v. United States, 416 F.3d 424, 426 (5th
Cir. 2005) (internal quotation marks and citation omitted). The court likewise
did not err by concluding that this § 2255 motion was unauthorized and suc-
cessive. See In re Tatum, 233 F.3d 857, 858 (5th Cir. 2000); see also 28 U.S.C.
§ 2244(b)(3)(A). Jurists of reason would not debate the propriety of the dis-
missal of the instant suit as an unauthorized successive § 2255 motion. See
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The COA motion is DENIED
as moot.

      Because Johnson has ignored this court’s warning against filing frivolous


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                                  No. 15-40402

or repetitive filings, he is ordered to pay a sanction of $100 to the clerk of this
court. He is barred from filing any pleading challenging his drug-related con-
victions in this court or any court subject to this court’s jurisdiction until the
sanction is paid in full unless he first obtains leave of the court in which he
seeks to file his pleadings. Johnson is further warned that any future frivolous,
repetitive, or otherwise abusive filings will subject him to additional and pro-
gressively more severe sanctions.




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