     Case: 17-20448      Document: 00514599427         Page: 1    Date Filed: 08/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                      No. 17-20448                         FILED
                                                                     August 14, 2018
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

                                                 Plaintiff-Appellee

v.

RHONDA FLEMING,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-2799
                             USDC No. 4:07-CR-513-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Rhonda Fleming, federal prisoner # 20446-009, argues that the district
court erred in transferring her Federal Rule of Civil Procedure 60(b) motion to
this court as an unauthorized successive 28 U.S.C. § 2255 motion. The clerk
of this court docketed the transfer under case number 17-20412; however, the
proceeding was dismissed when Fleming failed to comply with a court order.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20448     Document: 00514599427     Page: 2   Date Filed: 08/14/2018


                                  No. 17-20448

Meanwhile, Fleming initiated this appeal by filing a notice of appeal
referencing the transfer order.
      The transfer order of an unauthorized § 2255 motion is not a final order
under 28 U.S.C. § 2253(c)(1)(B). See United States v. Fulton, 780 F.3d 683, 688
(5th Cir. 2015). Therefore, “the appeal of such an order does not require”
a certificate of appealability (COA). Id. According to Fleming, the district
court made a procedural error when it denied a COA on her original § 2255
motion without citing to any case law. Thus, she contends that, following Buck
v. Davis, 137 S. Ct. 759 (2017), the district court may have applied an incorrect
standard for determining whether she was entitled to a COA. Fleming asks
this court to vacate the underlying judgment, reconsider the claims presented
in her § 2255 motion as well as new claims based on new evidence and new
rules of constitutional law, and either grant relief under § 2255 or grant her a
COA under the Buck standard.
      A Rule 60(b) motion raising new substantive claims or attacking the
merits-based resolution of prior § 2255 claims should be construed as a
successive § 2255 motion. Gonzalez v. Crosby, 545 U.S. 524, 529-31 (2005).
However, a Rule 60(b) motion is not a successive § 2255 motion if it “attacks
. . . some defect in the integrity of the federal habeas proceedings.” Id. at 532.
To the extent that Fleming is arguing that Buck established the existence of a
defect in the initial § 2255 proceedings, her claim is without merit; Buck did
not alter the Supreme Court’s COA analysis, and there is no indication that
Fleming did not receive a proper review of her COA claims. Moreover, to the
extent that she is using her Buck claim as a vehicle to obtain review of the
merits of her initial and new § 2255 claims, her Rule 60(b) motion was in fact
an unauthorized successive § 2255 motion, and the district court properly
transferred the pleading to this court.



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    Case: 17-20448   Document: 00514599427      Page: 3   Date Filed: 08/14/2018


                                 No. 17-20448

     Accordingly,    Fleming’s   motion   for   a   COA     is   DENIED      AS
UNNECESSARY. The district court’s order transferring her Rule 60(b) motion
to this court is AFFIRMED. The outstanding motion for leave to proceed in
forma pauperis on appeal is DENIED.




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