     Case: 15-50098      Document: 00513304200         Page: 1    Date Filed: 12/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-50098                                 FILED
                                                                           December 11, 2015

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
                                                 Plaintiff-Appellee

v.

ROBIN M. GATEWOOD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:15-CV-3


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Robin M. Gatewood, federal prisoner # 27771-180, is serving a life
sentence as a result of his involvement in a drug trafficking conspiracy. He
moves in this court for leave to proceed in forma pauperis (IFP) on appeal and
for a certificate of appealability (COA) to appeal the district court’s order
transferring his 28 U.S.C. § 2255 motion to this court in order for Gatewood to
obtain authorization to file a successive § 2255 motion. The district court, after



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50098     Document: 00513304200     Page: 2   Date Filed: 12/11/2015


                                  No. 15-50098

certifying that the appeal was not taken in good faith, denied Gatewood’s
motion for leave to proceed IFP on appeal and declined to issue a COA.
      We recently addressed whether a COA is required to appeal a transfer
order. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015), cert.
denied, 2015 WL 5772739) (Nov. 2, 2015) (No. 15-6348). We determined that,
while a “transfer order of a habeas petition deemed successive is an appealable,
collateral order,” it is not a final order within the meaning of 28 U.S.C.
§ 2253(c)(1)(B). Id. Thus, “the appeal of such an order does not require a COA.”
Fulton, 780 F.3d at 688. Accordingly, Gatewood’s motion for COA is DENIED
AS UNNECESSARY.
      Next, we address Gatewood’s IFP motion.         A person who desires to
appeal IFP must obtain prior approval if, as in this case, the district court
certifies that the appeal is not taken in good faith. FED. R. APP. P. 24(a)(3)(A).
By moving to proceed IFP on appeal, Gatewood is challenging the district
court’s certification that his appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Gatewood’s good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citations omitted). If we uphold
the district court’s certification, Gatewood must pay the filing fee or the appeal
will be dismissed for want of prosecution. Baugh, 117 F.3d at 202. However,
we may dismiss the appeal as frivolous when it is apparent that an appeal
would be meritless. 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.
      To establish that an appeal from the transfer order involves a non-
frivolous issue, Gatewood must show that his motion is non-successive. Fulton,
780 F.3d at 685. A § 2255 motion is successive when it contains a claim that




                                        2
    Case: 15-50098    Document: 00513304200      Page: 3   Date Filed: 12/11/2015


                                 No. 15-50098

was or could have been raised in an earlier application or otherwise constitutes
an abuse of the writ. In re Cain, 137 F.3d 234, 235 (5th Cir. 1998).
      This is Gatewood’s third attempt to file a § 2255 motion. His first § 2255
motion was filed in 2008, and the district court denied relief. Gatewood filed a
second § 2255 motion in 2014, which the district court transferred to this court
for authorization.   Gatewood argues that the district court should have
construed the instant § 2255 motion as a motion to amend his 2014 § 2255
motion because it is still pending.        Gatewood is mistaken.       We denied
authorization in that case in December 2014 before he filed the instant motion
in January 2015.
      In his second argument, Gatewood contends that his third § 2255 motion
is non-successive because the newly discovered evidence supporting his claims
was not discovered until after the district court disposed of his 2008 motion.
However, because Gatewood is challenging the same conviction in his third
§ 2255 motion that he challenged in his 2008 motion, the instant § 2255 motion
was properly construed as successive within the meaning of 28 U.S.C.
§ 2244(b). See Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009);
see also Magwood v. Patterson, 561 U.S. 320, 332-33 (2010).
      In light of the foregoing, Gatewood has not shown that an appeal of the
transfer order involves “legal points arguable on their merits.” See Fulton, 780
F.3d at 688; Howard, 707 F.2d at 220. Accordingly, his motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED AS FRIVOLOUS. 5TH
CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.




                                       3
