     Case: 13-50584      Document: 00512560499         Page: 1    Date Filed: 03/13/2014




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

                                                                                  FILED
                                      No. 13-50584                           March 13, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

CHESTER ENNIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:13-CV-89
                            USDC No. 3:02-CR-1430-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       In March 2013, Chester Ennis, federal prisoner # 15681-001, filed a
28 U.S.C. § 2255 motion challenging a September 2003 judgment of conviction.
That judgment imposed life sentences for one count of conspiracy to possess
with the intent to distribute controlled substances and four counts of
possession with intent to distribute a controlled substance, and it also imposed
a concurrent 96-month term of imprisonment for one count of using a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50584      Document: 00512560499     Page: 2   Date Filed: 03/13/2014


                                    No. 13-50584

communication device to facilitate the commission of a felony. Because Ennis
had already filed one § 2255 motion challenging that same judgment, the
district court transferred the March 2013 motion to this court pursuant to
28 U.S.C. § 1631 as an unauthorized, successive motion.             While Ennis’s
transferred motion was still pending in this court, Ennis filed in the district
court a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure
asking the district court to reconsider its characterization of his § 2255 motion
as an unauthorized, successive motion and its decision to transfer the motion
to this court as such. The district court denied Ennis’s Rule 59(e) motion, and
Ennis now seeks a certificate of appealability (COA) to appeal that denial of
relief.
          This case presents two jurisdictional questions. The first concerns the
district court’s statement in its order denying relief under Rule 59(e) that the
order was a non-appealable interlocutory order. However, in a case like this
one, where a successive § 2255 motion and an appeal from a § 1631 transfer
order are both before this court, the transfer order “is an appealable, collateral
order” over which we have jurisdiction. In re Bradford, 660 F.3d 226, 228-29
(5th Cir. 2011). Because we would have jurisdiction to review the transfer
order in this case, see id., it follows that we have jurisdiction to review the
denial of a Rule 59(e) motion seeking reconsideration of that transfer order.
          The second jurisdictional question in this cases arises because the
district court did not address whether a COA was warranted when it denied
Ennis’s motion for reconsideration. We assume without deciding that we lack
jurisdiction over the appeal from that order pursuant to Rule 11(a) of the Rules
Governing § 2255 Proceedings, which has language similar to former Rule 22
of the Federal Rules of Appellate Procedure. See United States v. Youngblood,
116 F.3d 1113, 1114 (5th Cir. 1997). We decline to remand this case to the



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                                    No. 13-50584

district court for a COA ruling because, for the reasons discussed below, such
a remand would be futile and thus waste precious judicial resources. See
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Accordingly, the
appeal from the denial of the motion to alter or amend under Rule 59(e) is
DISMISSED for lack of jurisdiction, and Ennis’s motion for a COA is DENIED
as moot.
        In the alternative, even if we assume that we have jurisdiction over the
appeal without the district court’s ruling on a COA, we would deny a COA as
to the Rule 59(e) motion. To obtain a COA, Ennis must show that reasonable
jurists would debate whether the district court abused its discretion when it
denied his Rule 59(e) motion. See Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Williams v. Thaler, 602 F.3d 291, 304 (5th Cir. 2010). In January 2006, Ennis
filed an unsuccessful § 2255 motion challenging his September 2003 judgment
of conviction. Accordingly, the district court did not abuse its discretion in
characterizing his most recent § 2255 motion as an unauthorized, successive
motion and transferring it to this court under § 1631. See In re Lampton,
667 F.3d 585, 587-88 (5th Cir. 2012); Bradford, 660 F.3d at 230. Ennis thus
cannot make the showing required to obtain a COA. See Slack, 529 U.S. at
484; Williams, 602 F.3d at 304.
        Next, we construe Ennis’s COA motion in the alternative as a request for
authorization to file a successive motion under § 2255(h)(2) since he argues
that     recent   Supreme   Court    decisions   support     his   allegations   that
his convictions and sentences are invalid.             To receive authorization
under § 2255(h)(2), Ennis must show that his motion is based on “a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” Ennis points to Lafler v.
Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), to



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                                 No. 13-50584

support his claim that he received ineffective assistance of counsel in
connection with his decision to proceed to trial rather than plead guilty. Cooper
and Frye, however, are not cases upon which a successive § 2255 motion may
be based. See In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (holding that
those cases could not form the basis for a successive 28 U.S.C. § 2254
application under 28 U.S.C. § 2244(b)(2)); Lampton, 667 F.3d at 588 (holding
that term “second or successive” as used in § 2244(b) and § 2255(h) have the
same meaning). Ennis also points to Alleyne v. United States, 133 S. Ct. 2151
(2013), as providing a new rule of law that would allow him to challenge the
determination of his sentence on his drug-related counts of conviction. We
have already held, however, that Alleyne does not allow a prisoner to bring a
successive motion under § 2255(h)(2). See In re Kemper, 735 F.3d 211, 212
(5th Cir. 2013). Accordingly, Ennis’s motion, to the extent that it can be
construed as a motion for authorization to file a successive § 2255 motion is
DENIED.




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