     Case: 19-51116      Document: 00515300798         Page: 1    Date Filed: 02/06/2020




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

                                                                             FILED
                                                                         February 6, 2020
                                      No. 19-51116
                                                                          Lyle W. Cayce
                                                                               Clerk
In re: JOSE TRINIDAD MEDEROS-UGARTE, also known as Trinidad Jose
           Mederos,

                                                Movant


                          Motion for an order authorizing
                         the United States District Court
                   for the Western District of Texas to consider
                       a successive 28 U.S.C. § 2255 motion


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Following the district court’s transfer of this case to our court, Jose
Trinidad     Mederos-Ugarte,       federal    prisoner    #    53531-280,     moves     for
authorization to file a second or successive 28 U.S.C. § 2255 motion challenging
his convictions and sentences for possession with intent to distribute 500
grams or more of methamphetamine and possession of a firearm in furtherance
of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A); 21 U.S.C. § 841(a)(1),
(b)(1)(A). In transferring the case, the district court determined that the § 2255
motion Mederos-Ugarte filed in May 2019 was second or successive to a
December 2016 § 2255 motion, which the district court had dismissed without



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-51116     Document: 00515300798     Page: 2   Date Filed: 02/06/2020


                                  No. 19-51116

prejudice after reinstating the criminal judgment against Mederos-Ugarte to
permit his out-of-time direct appeal of his convictions and sentences.
      Mederos-Ugarte seeks to raise a number of claims in his proposed § 2255
motion but only renews one claim from his initial § 2255 motion. He proposes
to argue that trial counsel Richard Jones rendered ineffective assistance by
failing to investigate and properly advise Mederos-Ugarte regarding the
Sentencing Guidelines, thus rendering Mederos-Ugarte’s plea of guilty
involuntary. Because there was no adjudication on the merits of this claim,
the claim is not successive within the meaning of § 2255(h) or 28 U.S.C.
§ 2244(b)(3)(A). See United States v. Orozco-Ramirez, 211 F.3d 862, 867-71
& n.15 (5th Cir. 2000). Mederos-Ugarte, therefore, need not obtain this court’s
authorization to file his proposed § 2255 motion as to this claim. See
§ 2244(b)(3)(A); Orozco-Ramirez, 211 F.3d at 869, 871 n.15. Moreover, the
district court’s transfer order as to this claim was not authorized under 28
U.S.C. § 1631 because the district court had jurisdiction over the § 2255
motion, and we lack jurisdiction as to this claim alone. See United States v.
Fulton, 780 F.3d 683, 685 (5th Cir. 2015).
      All of the other claims Mederos-Ugarte proposes to raise in his second
§ 2255 motion arise from and relate entirely to proceedings occurring prior to
the filing of his initial § 2255 motion. He has presented nothing indicating that
he was prevented from raising the claims in that motion. See Orozco-Ramirez,
211 F.3d at 869. They are thus successive, and Mederos-Ugarte may only file
these claims if he meets the requirements of § 2255(h). See id.; United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000); see also § 2244(b)(3)(A). To be granted
authorization to file a successive § 2255 motion, Mederos-Ugarte must make a
prima facie showing that his motion “contain[s]” either (1) “newly discovered
evidence that, if proven and viewed in light of the evidence as a whole, would



                                        2
    Case: 19-51116    Document: 00515300798      Page: 3   Date Filed: 02/06/2020


                                  No. 19-51116

be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found [him] guilty of the offense” or (2) “a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme    Court,    that   was    previously    unavailable.”   § 2255(h);   see
§ 2244(b)(3)(C); Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir.
2001).   Mederos-Ugarte does not discuss § 2255(h), much less make the
required prima facie showing, and his motion for authorization to file a
successive § 2255 motion is DENIED as to his claims other than the previously
raised but unadjudicated claim of ineffective assistance of trial counsel as to
counsel’s investigation of and advice regarding the Sentencing Guidelines. See
§ 2244(b)(3)(A); § 2255(h); Key, 205 F.3d at 774.
      IT IS ORDERED that Mederos-Ugarte’s motion for authorization to file
a second or successive § 2255 motion as to his claim that trial counsel Jones
performed ineffectively by failing to investigate and properly advise Mederos-
Ugarte regarding the Sentencing Guidelines is DENIED AS UNNECESSARY;
the district court’s transfer order is VACATED as to only this claim; and this
claim alone is REMANDED to the district court for consideration on the merits.
We express no opinion as to the merit of the claim.




                                       3
