Lavelle Evans v. Lorie Davis, Director , 683 F. App'x 285 ( 2017 )

Case: 15-11066 Document: 00513926924 Page: 1 Date Filed: 03/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11066 FILED
Summary Calendar March 27, 2017
Lyle W. Cayce
Clerk
LAVELLE EVANS,
Petitioner - Appellant
v.
LORIE DAVIS, 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-21
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Lavelle Evans, Texas prisoner # 1830990, was convicted of capital
murder and sentenced to life in prison. After his 28 U.S.C. § 2254 habeas
petition was denied and his appeal was pending, he filed a motion for relief
from judgment under Federal Rule of Civil Procedure 60(b). The district 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 15-11066 Document: 00513926924 Page: 2 Date Filed: 03/27/2017
No. 15-11066
construed the motion as an unauthorized successive § 2254 petition and
transferred the matter to this court. Evans is proceeding pro se.
Our examination of Evans’ filings, the record, and pertinent authority
shows no error in the court’s conclusion that Evans’ Rule 60(b) motion was best
construed as a second § 2254 petition. See Gonzalez v. Crosby, 545 U.S. 524,
530–32 & n.4 (2005). His motion attacked the court’s merits-based resolution
of his prior § 2254 claims, despite also alleging counsel committed fraud upon
the court by submitting an affidavit in the state habeas corpus proceeding and
in district court containing lies and misrepresentations. See Fierro v. Johnson,
197 F.3d 147, 153–55 (5th Cir. 1999).
Instead of transferring the case to this court, however, the district court
should have dismissed it without prejudice because, at the time, the appeal of
the denial of his first § 2254 petition was pending in this court. See Woollard
v. United States, 416 F.2d 50, 51 (5th Cir. 1968). That appeal remains pending.
Accordingly, we VACATE the district court’s transfer order, and
REMAND this matter for proceedings consistent with this opinion.
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