     Case: 14-60489      Document: 00513298887         Page: 1    Date Filed: 12/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60489
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 8, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk
v.

MICHAEL GIPSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:14-CV-121
                             USDC No. 2:00-CR-153-1


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Michael Gipson, federal prisoner # 11348-042, was convicted of one count
of aiding and abetting in the possession of stolen firearms, one count of aiding
and abetting in the use of a firearm during and in relation to a drug-trafficking
crime, and two counts of possession of a firearm by a convicted felon. Following
the denial of Gipson’s initial 28 U.S.C. § 2255 motion, the district court granted
his 28 U.S.C. § 2241 petition, vacated his sentence on the use-of-a-firearm
count, ordered resentencing, and appointed counsel for purposes of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60489

resentencing. The district court thereafter entered an order that vacated
Gipson’s sentence for the use-of-a-firearm count and reduced Gipson’s
remaining concurrent sentences from 125 months to 120 months.
      Gipson now seeks a certificate of appealability (COA) to appeal the
district court’s order transferring the instant § 2255 motion to this court as an
unauthorized successive § 2255 motion. Gipson argues that the § 2255 motion
is not successive because it raises claims that his appointed counsel was
ineffective in connection with his resentencing.
      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, 780 F.3d 683, 688 (5th
Cir. 2015), petition for cert. filed (July 21, 2015) (No. 15-6348). Therefore, we
DENY, as unnecessary, Gipson’s motion for a COA.
      Moreover, we conclude that the district court erred in construing the
instant § 2255 motion as successive. A habeas application is not second or
successive merely because it follows an earlier application. In re Cain, 137
F.3d 234, 235 (5th Cir. 1998). Rather, “a later petition is successive when it:
1) raises a claim challenging the petitioner’s conviction or sentence that was or
could have been raised in an earlier petition; or 2) otherwise constitutes an
abuse of the writ.” Id. Thus, in United States v. Orozco-Ramirez, 211 F.3d 862,
865, 869 (5th Cir. 2000), we concluded that Orozco-Ramirez’s claims of
ineffective assistance of counsel that related to his out-of-time appeal were not
successive because the facts underlying those claims “accrued after his initial
habeas motion was adjudicated and could not have been raised” in his earlier
§ 2255 motion. Similarly, Gipson’s claims of ineffective assistance of counsel
relate to his resentencing, and the facts underlying those claims did not accrue
until after his initial § 2255 motion was adjudicated. Accordingly, we VACATE



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                                 No. 14-60489

the district court’s order transferring Gipson’s § 2255 motion to this court, and
we REMAND the case to the district court for consideration of his § 2255
motion. Gipson’s motion for leave to proceed in forma pauperis on appeal is
GRANTED.




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