     Case: 09-10421     Document: 0051999189          Page: 1     Date Filed: 01/08/2010




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

                                                 FILED
                                                                           January 8, 2010
                                     No. 09-10421
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

BILLY GEORGE SEWARD,

                                                   Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:08-CV-125


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In May 2006, Billy George Seward, federal prisoner # 32204-177, pled
guilty to possession with intent to distribute methamphetamine and possession
of a firearm in furtherance of a drug trafficking crime. His plea was accepted,
and he was sentenced to 60 months of imprisonment on each count, to run
consecutively, and four years of supervised release.
       In April 2006, Seward and other individuals filed a petition which was
asserted to be pursuant to 28 U.S.C. § 2241. It was filed in the district court for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10421    Document: 0051999189 Page: 2        Date Filed: 01/08/2010
                                 No. 09-10421

the District of Columbia. That court construed the petition as a Section 2255
motion. See 28 U.S.C. § 2255.      In June 2007, the court ordered the case
transferred to the Northern District of Texas. Proceedings after that order
delayed the Texas court’s receipt of the case until August 2008. In July 2008,
Seward filed a second Section 2255 motion in the Northern District of Texas,
alleging that his firearms conviction is invalid following District of Columbia v.
Heller, 128 S. Ct. 2783 (2008). The district court dismissed his second Section
2255 motion without prejudice, finding it to be successive. In March 2009, the
court dismissed all claims.
      Seward now seeks a certificate of appealability (“COA”). When the district
court’s denial of Section 2255 relief is based on procedural grounds without
analysis of the underlying constitutional claims, “a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Seward
has not met this standard, and his motion for a COA is denied.
      In the alternative, Seward has moved for authorization to file a second or
successive Section 2255 motion. Because Seward does not allege the existence
of newly discovered evidence, his second Section 2255 motion must be certified
by this court to contain a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable. See § 2255(h). Seward has not shown that his proposed claim relies
on a qualifying new rule of constitutional law. See Tyler v. Cain, 533 U.S. 656,
663 (2001) (a new rule of constitutional law “is not ‘made retroactive to cases on
collateral review’ unless the Supreme Court holds it to be retroactive”). The
motion for authorization to file a successive Section 2255 motion is denied.
      MOTION      FOR    COA     DENIED;     ALTERNATIVE         MOTION      FOR
AUTHORIZATION TO FILE A SUCCESSIVE § 2255 MOTION DENIED.

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