United States v. David Hill ( 2015 )

Case: 13-11404 Document: 00513274724 Page: 1 Date Filed: 11/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11404 FILED
November 17, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DAVID HILL,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-4456
USDC No. 3:03-CR-159-2
Before JOLLY, DENNIS, and PRADO, Circuit Judge.
PER CURIAM: *
A jury found David Hill, federal prisoner # 30777-177, guilty of
conspiracy to manufacture and possess with the intent to distribute
methamphetamine. He was sentenced to 360 months of imprisonment and five
years of supervised release. The district court denied Hill’s initial 28 U.S.C.
§ 2255 motion. Hill filed a subsequent § 2255 motion challenging his
methamphetamine conviction, which the district court transferred to this court
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-11404
as an unauthorized successive § 2255 motion. See 28 U.S.C. § 2255(h); In re
Epps, 127 F.3d 364, 365 (5th Cir. 1997).
Hill requests a certificate of appealability (COA) so that he may
challenge the district court’s order transferring his § 2255 motion to this court.
He argues that the § 2255 remedy is ineffective and the district court’s transfer
to this court was unnecessary. He contends, inter alia, that he should have
been permitted to proceed under “new law” set forth in Alleyne v. United States,
133 S. Ct. 2151 (2013), and McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
A transfer order to cure want of jurisdiction, made pursuant to 28 U.S.C.
§ 1631, is not a “final order” as set forth in 28 U.S.C. § 2253(c)(1)(B). See United
States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015), petition for cert. filed (July
21, 2015) (No.15-6348). Thus, “the appeal of such an order does not require a
COA.” Fulton, 780 F.3d at 688. We therefore deny Hill’s motion for a COA as
unnecessary.
Additionally, although Alleyne and Perkins were both decided in 2013,
after the district court denied Hill’s initial § 2255 motion, the timing of those
decisions alone does not render the instant motion non-successive. See Fulton,
780 F.3d at 685. The underlying defects about which Hill complains, including
his claim of actual innocence, are sentencing challenges and challenges to the
effectiveness of his trial counsel. As these alleged defects and the facts
necessary to support the claims were known to Hill at trial and sentencing and
prior to when he filed his initial § 2255 motion, the instant motion is
successive, regardless of the date of the Supreme Court decisions upon which
Hill relies. See Leal Garcia v. Quarterman, 573 F.3d 214, 221-24 (5th Cir.
2009); Crone v. Cockrell, 324 F.3d 833, 837 (5th Cir. 2003). Thus, the district
court properly concluded that Hill’s § 2255 motion was an unauthorized
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Case: 13-11404 Document: 00513274724 Page: 3 Date Filed: 11/17/2015
No. 13-11404
successive § 2255 motion and properly transferred the motion to this court. See
§ 2255(h); Epps, 127 F.3d at 365.
MOTION FOR COA DENIED AS UNNECESSARY; TRANSFER
ORDER AFFIRMED.
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