Case: 14-10694 Document: 00513268614 Page: 1 Date Filed: 11/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10694
c/w No. 14-10702
United States Court of Appeals
Fifth Circuit
FILED
November 12, 2015
In re: JAMIE PERKINS,
Lyle W. Cayce
Clerk
Movant
Motions for an order authorizing
the United States District Court for the
Northern District of Texas, Dallas to consider
a successive 28 U.S.C. § 2255 motion
Cons. w/No. 14-10801
No. 14-10801
USDC No. 3:14-CV-2183
USDC No. 3:97-CR-55-21
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAMIE PERKINS,
Defendant - Appellant
Appeals from the United States District Court for the
Northern District of Texas, Dallas
Case: 14-10694 Document: 00513268614 Page: 2 Date Filed: 11/12/2015
No. 14-10694
c/w No. 14-10702
c/w No. 14-10801
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
In this consolidated matter, Jamie Perkins, federal prisoner # 46483-
177, seeks a certificate of appealability (COA) to challenge a district court’s
order transferring his 28 U.S.C. § 2255 motion to this court as an unauthorized
second or successive § 2255 motion to vacate, set aside, or correct sentence.
Perkins also seeks authorization to file a successive § 2255 motion. In these
various motions, Perkins seeks to challenge his guilty plea conviction on, as
relevant here, several weapons-related charges for which the district court
sentenced him to 10 years of imprisonment on a charge involving a shotgun
and 20 years of imprisonment on a charge involving a pistol. In connection
with his claims, Perkins also seeks appointment of counsel and leave to amend
his motions for authorization to file a successive § 2255 motion.
We have recently held that the transfer of an unauthorized § 2255
motion is not a final order under 28 U.S.C. § 2253(c)(1)(B) and, therefore,
Perkins does not need to obtain a COA to appeal the district court’s transfer of
his § 2255 motion. See United States v. Fulton, 780 F.3d 683, 688 (5th Cir.
2015). Nonetheless, we have also recently rejected the contention Perkins
makes here that his § 2255 motion is not successive because he filed it after he
was resentenced under 18 U.S.C. § 3582(c)(2) which occurred after Perkins
filed his first § 2255 motion. See United States v. Jones, 796 F.3d 483, 486 (5th
Cir. 2015). We therefore affirm the district court’s transfer of Perkins’s § 2255
motion to this court based on it being a successive motion.
* 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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Case: 14-10694 Document: 00513268614 Page: 3 Date Filed: 11/12/2015
No. 14-10694
c/w No. 14-10702
c/w No. 14-10801
We may authorize the filing of such a successive § 2255 motion only if
Perkins makes a prima facie showing that his proposed claims rely on either
(1) “newly discovered evidence that, if proven and viewed in light of the
evidence as a whole,” would establish by clear and convincing evidence that no
reasonable factfinder would have found her guilty of the offense; or (2) “a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h); see 28
U.S.C. § 2244(b)(3)(C); Reyes-Requena v. United States, 243 F.3d 893, 897-98
(5th Cir. 2001). Perkins does not assert that he has newly discovered evidence,
and we have rejected his contention that Alleyne v. United States, 133 S. Ct.
2151 (2013), is retroactively applicable to cases on collateral review. See In re
Kemper, 735 F.3d 211, 212 (5th Cir. 2013). Our holding in Kemper applies
equally to Perkins’s proposed new claim in his motion to amend the motion for
leave to file a successive § 2255 motion, and his proposed amendment is
therefore futile. See 735 F.3d at 212. Perkins has not made the required
showing under § 2244(b)(3)(C) for authorization to file a successive § 2255
motion.
IT IS ORDERED that Perkins’s motion for a COA in matter no. 14-10801
is DENIED as unnecessary, his motions for authorization to file a second or
successive § 2255 motion in matters no. 14-10694 & 14-10702 are DENIED
under §2255(h), his motion for leave to amend his motion for authorization to
file a successive § 2255 motion is DENIED as futile, his motion for
appointment of counsel is DENIED likewise, and the district court’s transfer
of Perkins’s unauthorized successive § 2255 motion in matter no. 14-10801 is
AFFIRMED.
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