     Case: 11-50240     Document: 00511675181         Page: 1     Date Filed: 11/23/2011




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

                                                                            FILED
                                                                        November 23, 2011
                                     No. 11-50240
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                    Plaintiff - Appellee

v.

JOSE LOPEZ QUINTERO, also known as Joe Lopez Quintero,

                                    Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-117


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Lopez Quintero, federal prisoner # 42177-080, filed a purported 28
U.S.C. § 2241 petition challenging his sentences; the district court
recharacterized his petition as a 28 U.S.C. § 2255 motion and dismissed it as an
unauthorized successive motion.              Quintero now seeks a certificate of
appealability (COA) and argues that he may bring his challenge as a § 2241
petition pursuant to the “savings clause” of § 2255. In the alternative, he



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50240

requests authorization to file a successive § 2255 motion. He also requests leave
to proceed in forma pauperis on appeal.
      As an initial matter, because Quintero sought relief under § 2241, he is not
required to obtain a COA to appeal. See Padilla v. United States, 416 F.3d 424,
425 (5th Cir. 2005). However, because he did not file his § 2241 petition in the
district of his current incarceration, the district court lacked jurisdiction to
consider it as a § 2241 petition. Lee v. Wetzel, 244 F.3d 370, 373 & n.3 (5th Cir.
2001).
      Federal courts may recharacterize a pro se litigant’s motion for various
reasons, including to avoid an unnecessary dismissal. Castro v. United States,
540 U.S. 375, 381-82 (2003).       Because it lacked jurisdiction to consider
Quintero’s claims as a § 2241 petition, and because § 2255 provides the primary
means of collaterally attacking a federal sentence, the district court did not err
by recharacterizing Quintero’s petition as a § 2255 motion. See Lee, 244 F.3d at
373; Padilla, 416 F.3d at 425-26. However, a district court lacks jurisdiction to
consider a successive § 2255 motion unless this court has granted permission to
file a successive motion pursuant to 28 U.S.C. § 2244(b)(3)(A). United States v.
Key, 205 F.3d 773, 774 (5th Cir. 2000). Because this court has not yet granted
such authorization the district court correctly found that Quintero’s motion
should be dismissed as an unauthorized successive application.
      Quintero requests in the alternative that this court grant him
authorization to file a successive § 2255 motion. A second or successive § 2255
motion must be certified by this court to contain either newly discovered
evidence or “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”
§ 2255(h). Quintero argues that the Supreme Court’s decisions in Begay v.
United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122
(2009), are retroactively applicable to cases on collateral review and demonstrate
that his prior convictions that were used for enhancement purposes under 18

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                                  No. 11-50240

U.S.C. § 924(e) were not qualifying crimes of violence. When seeking leave to file
a successive § 2255 motion on the basis of a new rule of constitutional law, a
movant must point to a Supreme Court decision that either expressly declares
the collateral availability of the rule . . . or applies the rule in a collateral
proceeding.” In re Tatum, 233 F.3d 857, 858 (5th Cir. 2000) (internal quotation
marks and citation omitted); see also Tyler v. Cain, 533 U.S. 656, 662 (2001)
(“‘[M]ade’ means ‘held’ and, thus, the requirement is satisfied only if [the
Supreme] Court has held that the new rule is retroactively applicable to cases
on collateral review.”). Quintero has not met this standard.
      MOTIONS FOR COA, AUTHORIZATION TO FILE A SUCCESSIVE
§ 2255 MOTION, AND LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED.




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