     Case: 15-10132      Document: 00513193461         Page: 1    Date Filed: 09/15/2015




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

                                      No. 15-10132                                 FILED
                                                                          September 15, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee

v.

BRUCE J. DELLERE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-1167


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Bruce J. Dellere, federal prisoner # 39587-177, pleaded guilty to
transportation and possession of child pornography; he received concurrent
sentences of 224 and 120 months, respectively. In 2012, Dellere filed a 28
U.S.C. § 2255 motion challenging these convictions.                In his reply to the
Government’s response, Dellere raised new grounds for relief, including a
contention that the search of his home and seizure of his computer violated the
Fourth Amendment and that his guilty plea was rendered involuntary because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10132     Document: 00513193461      Page: 2    Date Filed: 09/15/2015


                                  No. 15-10132

the Government withheld his insulin. The district court ultimately denied
relief on Dellere’s § 2255 motion; the court concluded that the claims presented
for the first time in Dellere’s reply were untimely. Dellere then filed a motion,
purportedly pursuant to Federal Rule of Civil Procedure 60(b), repeating the
Fourth Amendment and involuntary plea claims from his reply, asserting that
he was raising the allegations for the first time, and contending that he was
relying on newly discovered evidence in support of these grounds for relief. The
district court construed this motion as a successive § 2255 motion.
      Before a successive § 2255 motion may be filed in the district court, the
movant must obtain from this court an order authorizing the district court to
consider the motion. See § 2255(h); 28 U.S.C. § 2244(b)(3)(A) & (C). Dellere
seeks a certificate of appealability (COA) to appeal the district court’s order
transferring his postjudgment motion to this court so that he could seek leave
to file a successive § 2255 motion. Because “a transfer order under 28 U.S.C.
§ 1631 is not a final order within the meaning of [28 U.S.C.] § 2253(c)(1)(B), . . .
the appeal of such an order does not require a COA.” United States v. Fulton,
780 F.3d 683, 688 (5th Cir. 2015). Therefore, we DENY, as unnecessary,
Dellere’s motion for a COA.
      Dellere maintains that his Rule 60(b) motion is proper because he is not
raising claims that he presented in his original § 2255 motion.            He did,
however, present the allegations in his reply, and the district court addressed
them in its denial of § 2255 relief. Even if, as Dellere contends, his assertions
were based on new evidence, an attempt to present “‘newly discovered
evidence’” in support of a claim that has already been denied should be
construed as a successive pleading. Gonzalez v. Crosby, 545 U.S. 524, 531
(2005) (28 U.S.C. § 2254 case).       Moreover, if Dellere were correct in his
contentions that he was seeking to raise “new” claims, “[a] motion that seeks



                                         2
    Case: 15-10132    Document: 00513193461     Page: 3   Date Filed: 09/15/2015


                                 No. 15-10132

to add a new ground for relief . . . will of course qualify” as a successive
pleading. Gonzalez, 545 U.S. at 532.
      Given the foregoing, the district court properly determined that Dellere’s
Rule 60(b) motion constituted a successive § 2255 motion and that he must
obtain permission to file under § 2244(b)(3)(A). Accordingly, we AFFIRM the
order of the district court. We further note that, in a separate proceeding, the
clerk of this court dismissed Dellere’s motion for authorization to file a
successive § 2255 motion after he had failed to comply with this court’s
directives for filing a motion for authorization under § 2255(h). We therefore
REMAND with instruction that the district court dismiss the new civil
proceeding opened with the Rule 60(b) motion. See Fulton, 780 F.3d at 689.




                                       3
