     Case: 12-10659        Document: 00512970115         Page: 1     Date Filed: 03/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 12-10659                        United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
UNITED STATES OF AMERICA,                                                    March 16, 2015
                                                                              Lyle W. Cayce
                Plaintiff - Appellee                                               Clerk

v.

KENDRICK JERMAINE FULTON, also known as Ken Fulton,

                Defendant - Appellant




                     Appeal from the United States District Court
                          for the Northern District of Texas


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      This appeal by Kendrick Jermaine Fulton (“Fulton”) concerns the district
court’s transfer of his second motion under 28 U.S.C. § 2255. For the reasons
below, we AFFIRM the district court’s transfer order.
I.     Background
      Previously, this court affirmed Fulton’s conviction for drug-related
conspiracy to possess with intent to distribute, along with the resulting 400-
month sentence, which Fulton is now serving as federal prisoner # 30080-177. 1
The district court dismissed Fulton’s initial § 2255 motion and, upon Fulton’s



      1   See United States v. Fulton, 131 F. App’x 441, 442-44 (5th Cir. 2006).
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appeal, this court denied a certificate of appealability (“COA”). Importantly, in
his initial § 2255 motion, Fulton asserted a claim that, inter alia, Fulton
received ineffective assistance of counsel (“IAC”) at the plea-bargaining stage,
specifically that Fulton’s counsel provided incomplete information which
prevented Fulton from making an informed decision whether to accept a plea
offer by the Government. After an evidentiary hearing, the magistrate judge
made two findings regarding this claim, first that the performance of Fulton’s
counsel was not deficient, since counsel adequately informed Fulton of the plea
offer and the sentencing effect should Fulton accept the offer; and second,
assuming counsel’s deficient performance, that Fulton had not shown prejudice
since he failed to proffer evidence of his serious consideration of the plea offer.
In his second § 2255 motion, Fulton again asserts his claim of IAC at the plea-
bargaining stage, based on the same allegations as his initial § 2255 motion.
The district court transferred the motion to this court as a successive § 2255
motion, and denied Fulton’s subsequent motion for a COA.
       In a separate proceeding, Fulton filed a motion for authorization to file a
successive § 2255 petition, which this court denied. 2 Notably, Fulton expressly
reiterated the same IAC argument as one of his bases for a successive motion.
Fulton then filed a motion for a COA in this proceeding, which this court
initially denied. On reconsideration, however, we ultimately granted a COA on
two issues: “(1) whether a COA is required, i.e., whether the district court order
transferring appellant’s . . . § 2255 motion to this court is a final order as
envisioned by 28 U.S.C. § 2253(c)(1)(B), and (2) whether the district court erred
by transferring the § 2255 motion as a successive habeas petition.”
II.     Whether district court erred in transferring Fulton’s § 2255
        petition as successive


       2   In re Fulton, No. 12-10604 (5th Cir. Sept. 6, 2012) (per curiam).
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      Since the question of whether a petition is in fact successive is a
threshold jurisdictional matter, 3 we first address the second issue and consider
the propriety of the district court’s transfer on the basis of successiveness. For
the reasons explained below, we hold that Fulton’s second petition is
successive, and that the district court did not err in transferring the petition
on that basis.
      A second-in-time petition does not necessarily equate to one which is
successive within the meaning of § 2255. 4 Instead, “a later petition is
successive when it: 1) raises a claim challenging the petitioner’s conviction or
sentence that was or could have been raised in an earlier petition; or 2)
otherwise constitutes an abuse of the writ.” 5
      As previously noted, Fulton asserts the same IAC claim in the first and
instant applications. In each petition, Fulton asserts his counsel failed to
properly inform him of the effects of a plea offer as to his sentencing exposure.
The primary difference between the two petitions is Fulton’s reliance in the
latter on Lafler v. Cooper, 6 and Missouri v. Frye, 7 both of which were decided
after the denial of his first § 2255 motion. The timing of these decisions alone
does not render Fulton’s petition non-successive. 8
      Moreover, Fulton does not argue that his IAC claim is not successive.
Instead, Fulton argues that his current § 2255 motion should not be deemed
successive because his counsel abandoned him following an evidentiary
hearing regarding his first § 2255 motion; Fulton argues that this
abandonment deprived him of a “full and fair opportunity” to pursue his initial



      3 See Adams v. Thaler, 679 F.3d 312, 321 (5th Cir. 2012).
      4 In re Cain, 137 F.3d 234, 235 (5th Cir. 1998).
      5 Id.
      6 132 S. Ct. 1376 (2012).
      7 132 S. Ct. 1399 (2012).
      8 See Leal Garcia v. Quarterman, 573 F.3d 214, 221-22 (5th Cir. 2009).

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                                   No. 12-10659
§ 2255 motion because he alleges he was thereafter prevented from
representing himself pro se. As a result, Fulton argues that “fundamental
fairness” should provide an exception to the procedural bar of his filing this
successive § 2255 claim.
        Since the record belies the allegations, we need not address the
proposition of whether attorney abandonment during an initial habeas
proceeding should provide grounds for an exception to the bar against
successive motions, a proposition for which Fulton cites no supporting
authority. In this case, the district court made clear that Fulton’s counsel was
appointed solely for the purpose of representing him at the evidentiary hearing
before the magistrate judge. Following the evidentiary hearing, Fulton filed a
motion expressing his intention to file pro se his objections to the magistrate
judge’s report. Furthermore, Fulton filed his objections, contrary to his
allegations that he was prevented from doing so, and the district judge
considered those objections before overruling them.
        Since Fulton’s current § 2255 motion asserts an IAC claim that was
previously denied in his first § 2255 motion, the instant § 2255 motion is
successive and the district court did not have jurisdiction to consider his § 2255
claim. Accordingly, it did not err by transferring the motion for lack of
jurisdiction. We therefore AFFIRM the district court’s transfer order.




III.     Whether district court’s transfer order is a final order within the
         meaning of § 2253(c)(1)(B)
        We now turn to the second issue, and a brief description of the procedural
context behooves the analysis. In order to file a second or successive application
with the district court, 28 U.S.C. § 2244 provides that an applicant must first


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obtain authorization from the court of appeals. 9 The lack of such authorization
is a jurisdictional bar to the district court’s consideration, 10 and a district court
may dispose of applications lacking authorization through dismissal. 11
       Alternatively, a district court may transfer a petition lacking
authorization to this court for want of jurisdiction upon a finding that the
petition is successive. 12 The district court below chose to transfer the action
and, although the transfer order lacked a specified statutory basis, “we have
previously construed similar transfers as properly filed under 28 U.S.C.
§ 1631,” 13 which authorizes a federal court which lacks jurisdiction to transfer
an action to the court with proper jurisdiction. 14
       The instant discussion centers on whether such a transfer order falls
within the ambit of § 2253(c)(1)(B). Addressing whether a COA was required
for the appeal under the similar provision of § 2253(c)(1)(A), the Supreme
Court in Harbison v. Bell interpreted the COA requirement as only applying
to appeals of “[(1)] final orders [(2)] that dispose of the merits” of a § 2254
motion. 15 Accordingly, the order considered by the Harbison Court—a district
court’s denial of a § 2254 petitioner’s motion to enlarge the representational
authority of his appointed counsel—was not subject to the COA requirement. 16
We find no reason why the Harbison Court’s reasoning would not be equally
applicable to § 2253(c)(1)(B), the provision at issue in this case. Both provisions
describe orders for which a COA is required without merits-based distinction;



       928 U.S.C. § 2244(b)(3).
       10See Williams v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010).
      11 See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
      12 See In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014) (per curiam).
      13 In re Coleman, 768 F.3d at 371 n.8 (citing Adams, 679 F.3d at 322).
      14 See 28 U.S.C. § 1631.
      15 Harbison v. Bell, 556 U.S. 180, 183 (2009) (discussing § 2253(c)(1)(A), which imposes

COA requirement on appeals of state-court, rather than federal-court, convictions).
      16 Id.

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for its part, § 2253(c)(1)(A) imposes the requirement to any “final order in a
habeas corpus proceeding in which the detention complained of arises out of
process issued by the a State court,” 17 and § 2253(c)(1)(B) similarly applies the
requirement to a “final order in a proceeding under section 2255.” 18 The
provisions also apply to similar proceedings as, like the proceedings described
by § 2253(c)(1)(A), § 2255 proceedings are “proceeding[s] challenging the
lawfulness of the petitioner’s detention.” 19
       In addressing transfer orders of successive § 2255 motions, we have
previously addressed the successiveness of the petition, i.e. the basis of the
district court’s transfer, without imposing a COA requirement. 20 Even where
a petitioner has affirmatively sought a COA, we have first determined the
petition’s successiveness, only then denying a COA by applying the standard
for granting a COA to our determination that the petition was successive. 21
       In discussing whether a COA should issue in one of the latter cases,
Resendiz v. Quarterman, we quoted a Seventh Circuit decision for the
proposition that a “district court’s dismissal of a motion on the ground that it
is an unauthorized successive collateral attack constitutes a final order within
the scope of 28 U.S.C. § 2253(c).” 22 The application of Resendiz here is
questionable, since the authority upon which it relied spoke to a district court’s
dismissal, rather than transfer, of a § 2255 motion. 23 The distinction is
significant because, while this court has previously held that the appeal of a


       17  28 U.S.C. § 2253(c)(1)(A).
       18  28 U.S.C. § 2253(c)(1)(B).
        19 Harbison, 556 U.S. at 183.
        20 See In re Bradford, 660 F.3d 226, 228-29 (5th Cir. 2011) (per curiam); Henderson v.

Haro, 282 F.3d 862, 863-64 (5th Cir. 2002).
        21 See Resendiz v. Quarterman, 454 F.3d 456, 458-59 (5th Cir. 2006) (per curiam); see

also In re Hartzog, 444 F. App’x at 67; In re Colburn, 65 F. App’x 508, at *2, 4 (5th Cir. 2003).
        22 Resendiz, 454 F.3d at 458 (quoting Sveum v. Smith, 403 F.3d 447, 448 (7th Cir.

2005) (per curiam)).
        23 Sveum, 403 F.3d at 448.

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                                       No. 12-10659
district court’s dismissal of a habeas petition is subject to the COA
requirements of § 2255(c), 24 we have never held that § 2253(c) requires a COA
for an appeal of a transfer order under § 1631.
       Nevertheless, it is true that we have repeatedly recognized that a § 1631
transfer order of a habeas petition deemed successive is an appealable,
collateral order. 25 In In re Bradford, we held that the appeal of an order
transferring a habeas petition is an appealable, collateral order as it “(1) will
conclusively determine the correctness of the transfer; (2) is separate from the
merits of the § 2255 motion; and (3) is effectively unreviewable if the appeal is
dismissed.” 26 As the Supreme Court has explained, the collateral order
doctrine is “best understood not as an exception to the final decision rule laid
down by Congress in [28 U.S.C.] § 1291, but as a practical construction of it.” 27
Under that construction, a § 1631 transfer order may be treated as “final,” and
satisfies the first criteria of § 2253(c)(1)(B).
       We have refrained, however, from holding that such transfer orders fall
within the ambit of § 2253(c). This restraint is well-founded for the derivative
reason that a transfer order does not meet the second § 2253(c) criteria, since
a transfer order under § 1631 due to a petition’s successiveness does not
dispose of the merits of a § 2255 motion.
       Although we have treated this issue inconsistently in the past, our
precedent is consistent in one critical respect: a transfer order resolves an issue
completely separate from the merits of the action. The Government first argues



       24 See Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011) (addressing dismissal of
§ 2254 application but interpreting § 2253(c)(1)); Weaver v. Dretke, 106 F. App’x 255, 256 (5th
Cir. 2004) (per curiam).
       25 In re Bradford, 660 F.3d at 229; see also In re Sepulvado, 707 F.3d at 552;

Henderson, 282 F.3d at 863-64.
       26 In re Bradford, 660 F.3d at 229.
       27 Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal

quotation marks omitted).
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that “the district court’s order disposed of the merits . . . on procedural
grounds.” However, this argument is contrary to the determination in
Bradford that such orders fall within the collateral order doctrine in part
because the order is “separate from the merits of the § 2255 motion.” 28 Indeed,
the non-merits aspect of the transfer order is one of the requisite bases for our
consistent application of the collateral order doctrine to such orders. 29 We find
no reason to deviate from our previous application of the collateral order
doctrine and, moreover, Bradford is binding on our resolution of this issue. We
hold that a transfer order under § 1631 is not a final order within the meaning
of § 2253(c)(1)(B), and the appeal of such an order does not require a COA.
       This matter brings to light more practical considerations impacting
judicial efficiency. First, as discussed above, even where the petitioner made a
COA request, this court’s prior decisions have addressed the jurisdiction-
determining question of successiveness prior to any COA consideration, which
was resolved based on the successiveness determination. 30 Further, we have
recognized that an application’s successiveness is the exclusive basis under
§ 1631 by which a district court has authority to transfer a petition to this
court. 31 Thus, as case law in this circuit demonstrates, giving primary
jurisdictional consideration to successiveness largely resolves the only
recognized basis for an appeal of a transfer order in this context. As a result, a
COA requirement presents a judicially inefficient procedural mechanism
which would have little practical benefit.
      Second, in this case the petitioner filed both an appeal of the transfer
order and a motion for authorization; however, the matters proceeded


       28In re Bradford, 660 F.3d at 229.
       29See id.; see also In re Sepulvado, 707 F.3d at 552.
      30 See Resendiz 454 F.3d at 458-59; see also In re Hartzog, 444 F. App’x at 67; In re

Colburn, 65 F. App’x 508, at *2, 4 (5th Cir. 2003).
      31 In re Trotter, 544 F. App’x 392, 393 (5th Cir. 2013).

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separately in contrast to the consolidated presentation of such filings to panels
considering similar matters. 32 These filings often present interrelated issues.
Therefore, to the extent possible, in any future cases in which a district court
transfers a § 2255 motion to this court on the basis of successiveness and the
propriety of the transfer order has not yet been addressed by this court, we
instruct the clerk of the court to consolidate any request by the petitioner for a
COA on his habeas claim, or any motion for authorization, to the panel
considering the transferred § 2255 petition.
IV.     Conclusion
       Because Fulton’s petition as presented to the district court was correctly
determined to be successive, we AFFIRM the order of the district court. As
noted previously, Fulton’s motion for authorization has been denied by another
panel, which prevents jurisdiction from vesting in a district court. We therefore
REMAND to the district court with instructions to dismiss Fulton’s § 2255
petition for want of jurisdiction. Fulton’s motion for appointment of counsel to
pursue his abandonment argument is DENIED.




       32   See In re Coleman, 748 F.3d at 369; In re Bradford, 660 F.3d at 228.
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