United States v. Michael Gipson , 623 F. App'x 280 ( 2015 )


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  •      Case: 14-60489      Document: 00513298887         Page: 1    Date Filed: 12/08/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-60489
    United States Court of Appeals
    Fifth Circuit
    FILED
    UNITED STATES OF AMERICA,                                                December 8, 2015
    Lyle W. Cayce
    Plaintiff-Appellee             Clerk
    v.
    MICHAEL GIPSON,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 3:14-CV-121
    USDC No. 2:00-CR-153-1
    Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
    PER CURIAM: *
    Michael Gipson, federal prisoner # 11348-042, was convicted of one count
    of aiding and abetting in the possession of stolen firearms, one count of aiding
    and abetting in the use of a firearm during and in relation to a drug-trafficking
    crime, and two counts of possession of a firearm by a convicted felon. Following
    the denial of Gipson’s initial 28 U.S.C. § 2255 motion, the district court granted
    his 28 U.S.C. § 2241 petition, vacated his sentence on the use-of-a-firearm
    count, ordered resentencing, and appointed counsel for purposes of
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60489    Document: 00513298887        Page: 2   Date Filed: 12/08/2015
    No. 14-60489
    resentencing. The district court thereafter entered an order that vacated
    Gipson’s sentence for the use-of-a-firearm count and reduced Gipson’s
    remaining concurrent sentences from 125 months to 120 months.
    Gipson now seeks a certificate of appealability (COA) to appeal the
    district court’s order transferring the instant § 2255 motion to this court as an
    unauthorized successive § 2255 motion. Gipson argues that the § 2255 motion
    is not successive because it raises claims that his appointed counsel was
    ineffective in connection with his resentencing.
    Because “a transfer order under 28 U.S.C. § 1631 is not a final order
    within the meaning of [28 U.S.C.] § 2253(c)(1)(B), . . . the appeal of such an
    order does not require a COA.” United States v. Fulton, 
    780 F.3d 683
    , 688 (5th
    Cir. 2015), petition for cert. filed (July 21, 2015) (No. 15-6348). Therefore, we
    DENY, as unnecessary, Gipson’s motion for a COA.
    Moreover, we conclude that the district court erred in construing the
    instant § 2255 motion as successive. A habeas application is not second or
    successive merely because it follows an earlier application. In re Cain, 
    137 F.3d 234
    , 235 (5th Cir. 1998). Rather, “a later petition is successive when it:
    1) raises a claim challenging the petitioner’s conviction or sentence that was or
    could have been raised in an earlier petition; or 2) otherwise constitutes an
    abuse of the writ.” 
    Id. Thus, in
    United States v. Orozco-Ramirez, 
    211 F.3d 862
    ,
    865, 869 (5th Cir. 2000), we concluded that Orozco-Ramirez’s claims of
    ineffective assistance of counsel that related to his out-of-time appeal were not
    successive because the facts underlying those claims “accrued after his initial
    habeas motion was adjudicated and could not have been raised” in his earlier
    § 2255 motion. Similarly, Gipson’s claims of ineffective assistance of counsel
    relate to his resentencing, and the facts underlying those claims did not accrue
    until after his initial § 2255 motion was adjudicated. Accordingly, we VACATE
    2
    Case: 14-60489    Document: 00513298887     Page: 3   Date Filed: 12/08/2015
    No. 14-60489
    the district court’s order transferring Gipson’s § 2255 motion to this court, and
    we REMAND the case to the district court for consideration of his § 2255
    motion. Gipson’s motion for leave to proceed in forma pauperis on appeal is
    GRANTED.
    3
    

Document Info

Docket Number: 14-60489

Citation Numbers: 623 F. App'x 280

Filed Date: 12/8/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023