      Case: 15-10072          Document: 00513271274       Page: 1   Date Filed: 11/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                           No. 15-10041
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: DAVID JOE KERNS,                                                  November 13, 2015
                                                                           Lyle W. Cayce
                                                   Movant                       Clerk


                               Motion for an order authorizing
                          the United States District Court for the
                           Northern District of Texas, to consider
                            a successive 28 U.S.C. § 2255 motion


----------------------------------------
Consolidated With
Case No. 15-10072

DAVID JOE KERNS,

                                                   Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent-Appellee


                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:13-CV-5014


Before DAVIS, JONES, and HAYNES, Circuit Judges.
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                                     No. 15-10041
                                   c/w No. 15-10072


PER CURIAM: *
       David Joe Kerns, Texas prisoner # 243903, who is serving four life
sentences for murder, moves this court for a certificate of appealability (COA)
seeking to appeal the district court’s decision to transfer his postconviction
application to this court based on its determination that the application
amounted to an unauthorized successive 28 U.S.C. § 2254 application. He has
also moved this court for authorization to file a successive § 2254 application,
seeking to raise claims that (1) the Texas Department of Criminal Justice has
mischaracterized his indeterminate sentences of five years to life as
determinate life sentences; (2) he is entitled to be released from prison because,
he says, his good time credit added to the time he has served is sufficient to
discharge his indeterminate sentences; (3) the retroactive application of the
rules regarding the use of good time credits to offset his sentences violates the
Due Process and Ex Post Facto Clauses; and (4) the failure to characterize his
sentences as indeterminate sentences and to apply good time credits to the
sentences constitutes cruel and unusual punishment. These are the same
claims that he presentenced in his application in the district court.
       A prisoner need not obtain a COA to appeal a district court’s transfer
order. United States v. Fulton, 780 F.3d 683 (5th Cir. 2015), cert. denied, 2015
WL 5772739 (Nov. 2, 2015) (No. 15-6348). Accordingly, we address the merits
of Kerns’s argument that the district court erroneously transferred the
application to this court. A prisoner seeking to file a second or successive §
2254 application in the district court must first receive authorization from this


       * 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.



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court. 28 U.S.C. § 2244(b)(3)(A). A district court lacks jurisdiction to consider
a successive application if the prisoner has not received this court’s
authorization to file it. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
      Kerns maintains that his claims challenge the manner that his sentences
are being executed and thus, he asserts, arise under 28 U.S.C. §2241.
However, a state prisoner who wishes to challenge prison officials’ calculation
of his sentence must do so in a § 2254 application. See Whitehead v. Johnson,
157 F.3d 384, 386 n.1 (5th Cir. 1998); McGary v. Scott, 27 F.3d 181, 183 (5th
Cir. 1994).
      Additionally, Kerns argues that he could not have brought his claims in
his first § 2254 application because, he says, he only recently learned that his
sentences were indeterminate and he became entitled to release only after he
filed his first application. His proposed application is nonetheless successive.
Judgment was entered against Kerns in 1974, and so he knew or could have
known of the nature of his sentences at that time. Moreover, in Kerns’s prior
§ 2254 application, he alleged that his good time credits were not being applied
to his sentences, so he knew by then how the Texas Department of Criminal
Justice was executing his sentences. Therefore, he knew or could have known
all of the facts necessary to raise his proposed claims in his earlier application.
See Leal Garcia v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009); see also
McCall v. Dretke, 390 F.3d 358, 362 (5th Cir. 2004) (explaining that a prisoner
suffers actionable harm and thus may bring a § 2254 application when
authorities determine his eligibility for release and he need not wait until he
would otherwise be eligible for release). Accordingly, the district court properly
determined that it lacked jurisdiction over Kerns’s unauthorized successive




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§ 2254 application and did not err in transferring it to this court. See Fulton,
780 F.3d at 685-86.
      In his motion for authorization to file a successive § 2254 application,
Kerns points to no new rule of constitutional law that would support his
proposed claims. See § 2244(b)(2)(A). He does, however, identify an arguably
new fact supporting his proposed claims. See § 2244(b)(2)(B)(i). He explains
that he first learned in 2013, when he obtained copies of his judgments, that
his sentences were indeterminate sentences of five years to life rather than
simply life sentences. However, he does not explain how he could not have
learned of the 40-year-old judgments sooner through the exercise of due
diligence. See § 2244(b)(2)(B)(i). Thus, he has not made the required prima
facie showing necessary to receive authorization to file his proposed successive
application. See § 2244(b)(2), (3)(C).
      Kerns’s motion for a COA is DENIED as UNNECESSARY. His motion
for authorization to file a successive § 2254 application, two motions for judicial
notice, and motion for hearing en banc are DENIED. The district court’s
transfer order is AFFIRMED.




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