     Case: 09-40591     Document: 00511058605          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010
                                     No. 09-40591
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk



UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee

v.


LUIS ALEJANDRO GARZA,
                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 1:08-CV-496


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Luis Alejandro Garza, federal prisoner # 92434-079, convicted of four
counts of violating federal drug laws, was sentenced to four concurrent 324-
month terms of imprisonment. He filed a 28 U.S.C. § 2255 motion, requesting
permission to file an out-of-time appeal and based on claimed ineffective
assistance of counsel for failing to prosecute an appeal.               The district court
granted relief, and our court subsequently affirmed the convictions and



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40591     Document: 00511058605 Page: 2           Date Filed: 03/22/2010
                                  No. 09-40591

sentences. United States v. Garza, 275 F. App’x 377 (5th Cir.), cert. denied, 129
S. Ct. 423 (2008).
      Garza filed a second § 2255 motion, challenging claimed errors during his
trial. The district court dismissed the motion for lack of jurisdiction, concluding:
the motion was successive; and, Garza had failed to obtain authorization from
our court to file it. In the light of a circuit split on the question, the district court
granted Garza a certificate of appealability for whether a subsequent § 2255
motion is barred as a successive motion under § 2255(h) when it raises issues
that could have been raised in the initial § 2255 motion.
      Review of a district court’s dismissal of a § 2255 motion as an
unauthorized successive motion is de novo. See United States v. Orozco-Ramirez,
211 F.3d 862, 865 (5th Cir. 2000). Garza’s contention that the district court
erred in dismissing his second § 2255 motion as an unauthorized successive
motion is foreclosed by our decision in Orozco-Ramirez.             See id. at 869-71.
Because Garza’s claims regarding his trial were available to him when he filed
his initial § 2255 motion, they are successive. See id. His reliance on United
States v. West, 240 F.3d 456 (5th Cir. 2001), is misplaced: West clarified the
procedure to be followed by a district court in granting an out-of-time appeal, id.
at 458-59; it did not address whether a subsequent § 2255 motion is successive
within the meaning of 28 U.S.C § 2244.
      AFFIRMED.




                                           2
   Case: 09-40591    Document: 00511058605 Page: 3          Date Filed: 03/22/2010
                              No. [Case Number]

EMILIO M. GARZA, Circuit Judge, specially concurring:
      I concur in the per curiam opinion in its entirety, since our circuit
authority, based on United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir.
2000), requires us to find Garza’s second § 2255 petition to be an unauthorized
successive motion.
      However, the better view is expressed by the majority of circuits: a § 2255
petition is not considered to be successive if a prior § 2255 petition requests only
to reinstate the petitioner’s right to appeal and does not attack the judgment on
the merits. See, e.g., Johnson v. United States; 362 F.3d 636, 638 (9th Cir. 2004);
In re Olabode, 325 F.3d 166, 172–73 (3d Cir. 2003); Vasquez v. Parrott, 318 F.3d
387, 392 n.1 (2d Cir. 2003); McIver v. United States, 307 F.3d 1327, 1332 (11th
Cir. 2002); In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999); Shepeck v. United
States; 150 F.3d 800, 800–01 (7th Cir. 1998); United States v. Scott, 124 F.3d
1328, 1330 (10th Cir. 1997).
      Accordingly, I would encourage the en banc court to reconsider this issue
and align our precedent with that of our sister circuits.




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