     Case: 14-40828      Document: 00513179352         Page: 1    Date Filed: 09/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40828
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 2, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

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
                             USDC No. 1:00-CR-36-1


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       This appeal is from the district court’s denial of a pro se prisoner’s motion
to reopen a 28 U.S.C. § 2255 proceeding.              Finding that the district court
properly concluded that the § 2255 motion was barred as successive, we
AFFIRM the denial of the motion to reopen the proceedings.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      I.     BACKGROUND
      In 2000, a jury convicted Defendant-Appellant Luis Alejandro Garza
(“Garza”) of four drug trafficking offenses, and the district court sentenced him
to four concurrent 324-month terms of imprisonment. Garza’s subsequent
appeal was dismissed for failure to prosecute. Five years later, Garza filed a
§ 2255 motion, requesting permission to file an out-of-time appeal, arguing
that his attorney performed ineffectively by failing to prosecute his appeal.
The district court granted Garza’s request, and this court subsequently
affirmed his convictions and sentences. United States v. Garza, 275 F. App’x
377, 378 (5th Cir. 2008) (Garza I). In doing so, this court noted that because
the district court failed to vacate and reenter the 2000 criminal judgment as
required for an out-of-time appeal under United States v. West, 240 F.3d 456,
461 (5th Cir. 2001), Garza’s appeal was untimely. Garza I, 275 F. App’x at 378.
However, because the government waived the timeliness issue, this court
considered the merits of Garza’s appeal.      Id.   The Supreme Court denied
Garza’s petition for writ of certiorari. Garza v. United States, 555 U.S. 955
(2008).
      Two months later, Garza filed a second § 2255 motion. United States v.
Garza, 371 F. App’x 481, 482 (5th Cir. 2010) (Garza II). He asserted six claims
for relief, all stemming from his trial and sentencing. Garza admitted that he
had not raised any of the claims on direct appeal or in his first § 2255 motion.
The district court dismissed Garza’s second § 2255 motion as an unauthorized
successive motion under 28 U.S.C. § 2244 because he could have, but failed to,
raise the claims contained therein in his first § 2255 motion. This court
affirmed the district court’s dismissal, stating as follows: “Because Garza’s
claims regarding his trial were available to him when he filed his initial § 2255
motion, they are successive.” Garza II, 371 F. App’x at 482 (citing United



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States v. Orozco–Ramirez, 211 F.3d 862, 869–71 (5th Cir. 2000) (holding that a
second § 2255 motion filed after a first motion requesting only an out-of-time
appeal is second or successive when the second motion raises claims that could
have been raised in the first motion)). The Supreme Court granted Garza’s
petition for writ of certiorari, vacated this court’s decision, and remanded the
case for further consideration in light of Magwood v. Patterson, 561 U.S. 320
(2010).   Garza v. United States, 562 U.S. 1210 (2011).       In Magwood, the
Supreme Court held that when there is a new judgment intervening between
two habeas petitions, and the latter petition challenges the new judgment, it
is not a second or successive petition under 28 U.S.C. § 2244(b). 561 U.S. at
341-42.
      On remand, this court again affirmed the district court’s dismissal of
Garza’s second § 2255 motion as an unauthorized successive motion. United
States v. Garza, 439 F. App’x 297, 300 (5th Cir. 2011) (Garza III). This court
noted that the district court had never entered a new judgment in Garza’s
underlying criminal case, and therefore, “consistent with Magwood, Garza’s
second § 2255 motion [was] successive.” Id. This court explained that because
the claims he raised with respect to the judgment entered in 2000 could have
been raised in his first § 2255 proceeding in which he was granted an out-of-
time appeal, the motion was successive. The Supreme Court denied Garza’s
petition for writ of certiorari. Garza v. United States, 133 S. Ct. 100 (2012).
      On October 26, 2012, Garza filed a motion to correct a defect in the
integrity of his first § 2255 proceeding pursuant to Federal Rule of Civil
Procedure 60(b). He asked the district court to vacate and reinstate his 2000
criminal judgment in order to comply with this court’s holding in West, 240
F.3d at 461, that a district court should reenter a criminal judgment after it




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grants an out-of-time appeal. In 2014, the district court entered an order
vacating and reentering the 2000 criminal judgment.
      Garza then filed a motion to reopen his second § 2255 proceeding
pursuant to Magwood based on the district court’s 2014 reentry of his 2000
criminal judgment. The government opposed Garza’s motion to reopen because
his second § 2255 motion remained an unauthorized successive motion.
Specifically, the government argued that Magwood was distinguishable from
Garza’s case because the 2014 reentry of Garza’s 2000 criminal judgment was
“merely a legal fiction created to allow an equitable ‘reset’ of the appellate
timetable,” rather than the type of “new judgment” contemplated in Magwood.
Garza filed a reply, asserting that the government’s argument was based on
dicta in Magwood. He also argued that the district court’s 2014 reentry of his
2000 criminal judgment constituted a new judgment under Magwood, thereby
permitting him to proceed with his second § 2255 motion. The district court
denied Garza’s motion to reopen, concluding that “the ‘new judgment’ that
results from a vacatur and reentry under West is not the type of ‘new judgment’
contemplated by Magwood.” The court further held that the motion was barred
as successive because all the claims in the motion could have been asserted in
his original § 2255 motion. Garza timely appealed and moved for a certificate
of appealability (“COA”), which the district court granted, explaining that a
reasonable jurist could conclude that the claims in Garza’s § 2255 motion state
a valid claim for the denial of a constitutional right. The court further noted
that there was no post-Magwood precedent decisively resolving the procedural
question in this case. Garza, proceeding pro se, now appeals.
      II.   SUCCESSIVE PETITION UNDER 28 U.S.C. § 2244(b)
      Garza contends that the district court erred in denying the motion to
reopen his § 2255 proceedings.      We review de novo the district court’s



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determination that Garza’s motion is second or successive. Orozco-Ramirez,
211 F.3d at 865. 1
        Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), a second or successive § 2255 motion must be certified by this court,
as provided in § 2244, to contain newly discovered evidence or a new rule of
constitutional law. See § 2255(h). “[T]he phrase ‘second or successive’ must be
interpreted with respect to the judgment challenged.” Magwood, 561 U.S. at
333. Relying on the Supreme Court’s opinion in Magwood, Garza contends
that the district court’s vacatur and reinstatement of the judgment in 2014
constituted a new judgment that allows him to file a § 2255 motion. 561 U.S.
320.
        In Magwood, the Supreme Court considered “whether a first application
challenging a new sentence in an intervening judgment is second or successive”
under § 2244(b). 561 U.S. at 335 n.11. Magwood was convicted of capital
murder and sentenced to death. Id. at 324. Shortly before his execution,
Magwood filed a 28 U.S.C. § 2254 petition. Id. at 326. The district court upheld
Magwood’s conviction but vacated his sentence and “conditionally granted the
writ based on the trial court’s failure to find statutory mitigating
circumstances relating to Magwood’s mental state.” Id. The state trial court
held a new sentencing proceeding and again sentenced Magwood to death. Id.
After the entry of his second death sentence, Magwood filed a second § 2254
petition, challenging the new death sentence. Id. at 328. The district court
again conditionally granted the writ. The court of appeals reversed, concluding


        1  The government argues that this court has already decided the instant issue in
Garza III, 439 F. App’x 300, and thus, the law of the case doctrine bars our consideration of
the issue. To begin with, we note that the law of the case doctrine is discretionary. United
States v. Agofsky, 516 F.3d 280, 283 (5th Cir. 2008). In any event, because the crux of Garza’s
entire argument relies upon the district court’s reentry of judgment in 2014 that occurred
after Garza III, the court has not yet decided the issue.


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that the petition was successive because it challenged the new sentence based
upon the same allegedly improper aggravating factor that the state trial court
had relied upon with respect to Magwood’s original sentence. Id. at 329. The
Supreme Court ultimately held that “where . . . there is a ‘new judgment
intervening between the two habeas petitions,’ an application challenging the
resulting new judgment is not ‘second or successive’ at all.” Id. at 341-42
(citation omitted).
      Although the Supreme Court’s opinion in Magwood “establishes that a
habeas application challenging a ‘new judgment’ is not second or successive, it
does not define the term ‘new judgment.’” United States v. Jones, --- F.3d ----,
No. 13-50475, 2015 WL 4644629 (5th Cir. Aug. 4, 2015). This Court has had a
few occasions to interpret the meaning of “new judgment.” We explained that
“[w]hether a new judgment has intervened between two habeas petitions, such
that the second petition can be filed without this Court’s permission, depends
on whether a new sentence has been imposed.” In re Lampton, 667 F.3d 585,
588 (5th Cir. 2012). In In re Lampton, the district court granted a § 2255
petition in part, concluding that the convictions for both conspiracy and
continuing criminal enterprise (CCE) constituted double jeopardy. Id. at 587.
The district court entered a judgment vacating the conspiracy conviction and
the life sentence based on that conviction. Id. This court held that the second,
subsequent petition attacking the remaining conviction and sentence for CCE
was successive. Id. at 589. We explained that “Lampton’s sentence on the CCE
conviction remained intact after the initial § 2255 proceeding was completed.”
Id. Thus, we determined that there was “no new, intervening judgment to
trigger the operation of Magwood.” Id.
      In Jones, after unsuccessfully seeking relief pursuant to § 2255, the
defendant filed an agreed motion for reduction of sentence based on the 2011



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amendments to the Sentencing Guidelines pursuant to 18 U.S.C. § 3582(c)(2).
No. 13-50475, 2015 WL 4644629, at*1. The district court granted the motion
and reduced the life sentences to 405 months. Id. Subsequently, the defendant
filed another § 2255 motion, arguing that his trial counsel rendered ineffective
assistance. Id. The district court held that the motion was successive. This
court granted a COA with respect to whether the sentence reduction pursuant
to § 3582(c)(2) “resulted in a new judgment such that his proposed § 2255
motion is not successive” under Magwood. Id. Turning to the language of
§ 3582(c)(2), we stated that the statute “does not authorize a sentencing or
resentencing proceeding. Instead, it provides for the modif[ication of] a term
of imprisonment by giving courts the power to reduce an otherwise final
sentence in circumstances specified by the Commission.” Id. at *3 (citation and
internal quotation marks omitted) (alteration in original). We also relied upon
our prior holding that because a reduction in sentence pursuant to § 3582(c)(2)
“does not affect the finality of a criminal judgment,” such a reduction “does not
restart the clock for AEDPA’s one-year limitations period for the filing of § 2255
motions.” Id. (quoting United States v. Olvera, 775 F.3d 726, 729 (5th Cir.
2015)) (internal quotation marks omitted). Accordingly, we opined that “[j]ust
as his sentence reduction does not re-start AEDPA’s one-year limitations clock
under our precedent . . . , it also does not wipe clean the slate of habeas
applications that he has previously filed.” Id. Thus, we held that the reduction
in sentence under § 3582(c)(2) did not constitute a new judgment under
Magwood. Id. See also In re Parker, 575 F. App’x 415, 419 (5th Cir. 2014)
(explaining that the amended judgment that corrected the terms of supervised
release was not a new judgment under Magwood because it was not the result
of a resentencing and had no effect on the overall length of the defendant’s
supervised release).



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      Applying the above precedent to the case at bar, we hold that the district
court’s reentry of the criminal judgment against Garza in 2014 did not
constitute a resentencing or new sentence. 2 Indeed, it did not alter or amend
Garza’s convictions or sentences.          The district court merely performed a
ministerial task permitting an out-of-time appeal as set forth in West, 240 F.3d
at 461. As such, the reentered judgment is not the type of “new judgment”
contemplated by Magwood.           Furthermore, because Garza’s second § 2255
motion seeks to raise claims that he could have raised in his first § 2255
motion, his second § 2255 motion remains an unauthorized successive § 2255
motion. The district court did not err in denying Garza’s motion to reopen his
second § 2255 proceeding.
      Finally, we note that the government’s brief states that continued
relitigation of the same issue is sanctionable and requests this court to caution
Garza that further repetitious, frivolous or otherwise abusive filings will invite
the imposition of sanctions. Because we do not find this appeal to be frivolous,
we decline to issue a sanction warning.
      AFFIRMED.




      2   Our conclusion is also supported by our pre-Magwood precedent. See Orozco–
Ramirez, 211 F.3d at 867 (holding that a second § 2255 motion filed after a first motion
requesting only an out-of-time appeal is second or successive when the second motion raises
claims that could have been raised in the first motion).


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