     Case: 09-40591     Document: 00511566332         Page: 1     Date Filed: 08/09/2011




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

                                                                            FILED
                                                                           August 9, 2011
                                     No. 09-40591
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,
                                                  Plaintiff - Appellee

v.


LUIS ALEJANDRO GARZA,
                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:08-CV-496


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        At issue is whether, in the light of Magwood v. Patterson, 130 S. Ct. 2788
(2010), discussed infra, the second 28 U.S.C. § 2255 motion filed by Luis
Alejandro Garza, federal prisoner # 92434-079, is successive and therefore
barred, because he has not received circuit-court authorization to file it. 28
U.S.C. § 2244(b)(3).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40591    Document: 00511566332       Page: 2   Date Filed: 08/09/2011

                                   No. 09-40591

      Garza was convicted in 2000 of four counts of violating federal drug laws
and sentenced to four concurrent 324-month terms of imprisonment. A timely
notice of appeal was filed, but our court dismissed for failure to prosecute in
September 2000.
      Five years later, pursuant to a 28 U.S.C. § 2255 motion, Garza requested
permission to file an out-of-time appeal, based on claimed ineffective assistance
of counsel for failing to prosecute his appeal in 2000. In his motion, he also
requested that his conviction be vacated, which, if granted, would have resulted
in entry of a new judgment. The district court granted permission for the out-of-
time appeal. Garza v. United States, No. 1:00-CR-36-1 (S.D. Tex. 19 Dec. 2006)
(order granting out-of-time appeal). In doing so, the court denied Garza’s
request that his conviction be vacated. Garza then filed a new notice of appeal.
       For that permitted direct appeal, Garza contended: (1) his sentence was
invalid because the district court imposed a sentence under the then mandatory
Guidelines scheme and enhanced his sentence on the basis of facts not admitted
by him or found by a jury; and (2) the district court erred in denying his motion
for a new trial because the court admitted improper evidence. United States v.
Garza, 275 F. App’x 377, 378 (5th Cir.), cert. denied, 129 S. Ct. 423 (2008).
Before addressing the merits of Garza’s appeal, our court observed that, even
though Garza’s new notice of appeal had been filed over six years after his
original judgment, and was therefore untimely, “the time limit for filing a
criminal appeal is not jurisdictional and can be waived”. Id. (citation omitted).
Our court held that, the Government’s not having contested Garza’s out-of-time
appeal, it had, therefore, waived the limitation period for filing a notice of appeal
in a criminal case. Garza, 275 F. App’x at 378; see FED. R. APP. P. 4(b)(1)(A)(i).
Thus, there was no procedural bar to our court hearing his appeal.              The
convictions and sentences were affirmed. Id.
      In 2008, Garza filed a second § 2255 motion, primarily again challenging
claimed errors during his trial. He maintained: his counsel was ineffective

                                         2
   Case: 09-40591   Document: 00511566332      Page: 3   Date Filed: 08/09/2011

                                  No. 09-40591

during the pretrial, pleading, trial, and sentencing processes; his “not guilty”
plea was in violation of the Sixth Amendment because he was uninformed of his
options; he was prejudiced by having his former detention teacher on the jury;
and he was entitled to an evidentiary hearing. The district court dismissed the
motion for lack of jurisdiction, concluding: the motion was successive; and,
contrary to 28 U.S.C. § 2244, Garza had failed to obtain the requisite
authorization from our court to file a successive motion.
      Our court affirmed, holding Garza’s second § 2255 motion was successive,
because it raised issues that could have been raised in his initial § 2255 motion.
United States v. Garza, 371 F. App’x 481, 482 (5th Cir. 2010). In doing so, our
court relied on United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.
2000) (holding § 2255 motion successive when challenge to movant’s conviction
or sentence could have been raised in earlier § 2255 motion).
      Subsequent to our decision, the Supreme Court decided Magwood,
discussed below. As a result, the Court vacated our decision and remanded to
our court for reconsideration in the light of Magwood. Garza v. United States,
131 S. Ct. 1469 (2011). Our court ordered supplemental briefing by the parties,
including addressing three points relevant to Magwood and the proceedings in
this case.
      Magwood involved a state prisoner who filed a federal habeas petition
challenging his conviction and sentence; that petition was conditionally granted
(Magwood be either released or resentenced). 130 S. Ct. at 2791-93. The trial
court held a new sentencing proceeding and imposed the same sentence as
before. Id. at 2793. Magwood then filed a second habeas petition, challenging
his new sentence. Id. at 2794.
      The Court held, inter alia, that a second or successive habeas petition
must be interpreted with respect to the judgment challenged. “[W]here . . . there
is a new judgment intervening between the two habeas petitions, . . . an
application challenging the resulting new judgment is not second or successive

                                        3
   Case: 09-40591    Document: 00511566332       Page: 4   Date Filed: 08/09/2011

                                   No. 09-40591

at all”. Id. at 2802 (internal citation and quotation marks omitted). As noted,
the new judgment in Magwood resulted from resentencing; and a new sentence
was imposed, based upon “a complete and new assessment of all of the evidence,
arguments of counsel, and law”. Id. at 2793 (citation and internal quotations
marks omitted).
      Review of the dismissal of a § 2255 motion as an unauthorized successive
motion is de novo. See Orozco-Ramirez, 211 F.3d at 865. Garza contends his
second § 2255 motion was not successive because the district court entered the
“functional equivalent” of a new judgment in 2006, when it granted him an out-
of-time appeal. As noted, however, although the district court granted Garza an
out-of-time appeal after he filed his first § 2255 motion in 2005, it denied his
request for his conviction to be vacated and did not reenter the judgment, as
noted by our court in his direct appeal. Garza, 275 F. App’x at 378.
      Generally, especially when the period for filing a criminal appeal was held
jurisdictional, if the right to file an out-of-time direct criminal appeal is granted
pursuant to a § 2255 motion, the underlying criminal judgment is vacated and
re-entered by the district court before that permitted direct appeal proceeds.
United States v. West, 240 F.3d 456, 458-59 (5th Cir. 2001). The current
limitation period to file a notice of appeal following entry of a judgment is 14
days. FED. R. APP. P. 4(b)(1)(A)(i). Traditionally, our court held the limitation
period to be both mandatory and jurisdictional; however, that period is no longer
jurisdictional for criminal appeals. United States v. Martinez, 496 F.3d 387, 388
(5th Cir. 2007). In Martinez, our court relied upon Bowles v. Russell, 551 U.S.
205, 213 (2007), where the Supreme Court determined that the limitation period
for filing a civil appeal is both mandatory and jurisdictional because that
limitation period stems from a statutory and court-adopted time requirement.
The Bowles Court also noted, however, that because criminal-appeal time
requirements are not statutory, “it [is] improper for courts to use the term
‘jurisdictional’ to describe [judicially-imposed] time prescriptions in rules of

                                         4
   Case: 09-40591   Document: 00511566332      Page: 5   Date Filed: 08/09/2011

                                  No. 09-40591

court”. Bowles, 551 U.S. at 211; see Martinez, 496 F.3d at 388. Therefore, the
Court made clear: the rule for filing a criminal appeal is not jurisdictional; and
the limitation period can be waived. Bowles, 551 U.S. at 212-13; Martinez, 496
F.3d at 388-89.
      As our court noted in deciding Garza’s permitted direct appeal in 2008, the
Government did not oppose his filing an out-of-time appeal and, therefore,
waived the limitation period. Garza, 275 F. App’x at 378. Accordingly, our court
addressed the merits of Garza’s claims, even though no new judgment had been
entered. Id. (citing Martinez, 496 F.3d at 388-89).
      Thus, there was not a new judgment (nor the functional equivalent of one)
intervening between Garza’s two § 2255 motions; and, consistent with Magwood,
Garza’s second motion is successive. Because Garza’s claims regarding that
judgment entered in 2000 were available to him when he filed his initial § 2255
motion and subsequently pursued a direct appeal in our court concerning that
judgment, his second § 2255 motion is foreclosed by our decision in Orozco-
Ramirez, 211 F.3d at 869-71.
      AFFIRMED.




                                        5
