Case: 16-30816 Document: 00514122079 Page: 1 Date Filed: 08/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30816 FILED
Summary Calendar August 18, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL SHORT, also known as Nate,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:96-CR-232-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Michael Short, federal prisoner # 22355-034, argues that the district
court erred in transferring his Federal Rule of Civil Procedure 60(b) motion to
this court as an unauthorized successive 28 U.S.C. § 2255 motion. He asserts
that the district court made a procedural error when it denied a claim raised
in his first § 2255 motion that his counsel was ineffective because he did not
challenge Short’s prolonged detention to conduct a dog sniff during which cell
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30816
phone numbers were illegally obtained. Short contends that the Supreme
Court’s decision in Rodriguez v. United States, 135 S. Ct. 1609 (2015), clarified
that the legal theory supporting his claim was correct. He maintains that the
district court made a procedural error when it denied his ineffective assistance
claim on the ground that the Fourth Amendment issue was raised and decided
on direct appeal. Alternatively, Short argues that the district court had
jurisdiction to consider his Rule 60(b) motion because his claim did not become
ripe until the Supreme Court issued its decision in Rodriguez.
Because Short’s Rule 60(b) motion challenged the denial of the
ineffective assistance claim in part on the merits based on Rodriguez, the
district court correctly determined that the motion was an unauthorized
successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 & n.4
(2005). In addition, Short did not demonstrate the district court made a
procedural error when it denied his ineffective assistance claim. The district
court denied Short’s ineffective assistance claim on the merits, holding that
Short’s counsel was not ineffective for failing to challenge the detention and
the subsequent seizure of the cell phone numbers because Short did not have
standing to challenge the seizure of the cell phones as this court held on direct
appeal. The district court did not misconstrue the ineffective assistance claim
as the same claim that Short raised on direct appeal.
Further, Short’s argument that his claim was not ripe until Rodriguez
was decided lacks merit. Because the factual basis of Short’s ineffective
assistance argument was available to him at the time he filed his first § 2255
motion, the claim was ripe at that time, rather than when he discovered a new
legal authority that supports it. See United States v. Fulton, 780 F.3d 683, 685
& n.8 (5th Cir. 2015).
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No. 16-30816
Accordingly, the district court did not have jurisdiction to consider
Short’s Rule 60(b) motion and did not err in transferring it to this court. See
Fulton, 780 F.3d at 686. Short’s reliance on Buck v. Davis, 137 S. Ct. 759
(2017), is misplaced because that decision does not support his argument that
the district court erred in determining that his Rule 60(b) motion was an
unauthorized successive § 2255 motion. For these reasons, the district court’s
transfer order is affirmed, and Short’s motion to certify questions is denied.
Short is advised that future frivolous or repetitive challenges to his
convictions and sentences in this court or any court subject to this court’s
jurisdiction will result in the imposition of sanctions. Short should review any
pending matters and move to dismiss those that are frivolous.
AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.
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