United States v. Franklin

Case: 20-30569   Document: 00515687565        Page: 1    Date Filed: 12/29/2020




          United States Court of Appeals
               for the Fifth Circuit                          United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                              December 29, 2020
                               No. 20-30569                     Lyle W. Cayce
                                                                     Clerk

   In re Darryl Franklin, also known as Daryl Franklin,

                                                                          Movant.


                      Motion for an order authorizing
                  the United States District Court for the
                  Eastern District of Louisiana to consider
                   a successive 28 U.S.C. § 2255 motion


   and


                               No. 20-30619


   United States of America,

                                                         Plaintiff-Appellee,

                                   versus

   Darryl Franklin, also known as Daryl Franklin,


                                                        Defendant-Appellant.
Case: 20-30569     Document: 00515687565            Page: 2   Date Filed: 12/29/2020

                                    No. 20-30569
                                   & No. 20-30619




                  Appeal from the United States District Court
                     for the Eastern District of Louisiana
                           USDC No. 2:16-CV-11689
                           USDC No. 2:02-CR-304-2


   Before Willett, Ho, and Duncan, Circuit Judges.
   Per Curiam:*
          In No. 20-30569, Darryl Franklin, federal prisoner # 28126-034, seeks
   authorization to file a successive 28 U.S.C. § 2255 motion challenging his
   2003 convictions and sentences for carjacking or attempted carjacking by
   force with intent to cause death or serious bodily harm and carjacking
   resulting in an intentional killing. After the district court entered judgment
   dismissing Franklin’s first § 2255 motion, he filed a pro se motion requesting
   relief under Federal Rule of Civil Procedure 60(b). The district court
   recharacterized the purported Rule 60(b) motion as a successive § 2255
   motion and transferred the case to this court for consideration of whether
   Franklin should be granted authorization to file the successive motion. In No.
   20-30619, Franklin seeks a certificate of appealability (COA) to appeal the
   district court’s transfer order. We exercise our authority to sua sponte
   consolidate these related matters. See United States v. Fulton, 780 F.3d 683,
   688 (5th Cir. 2015); United States v. Rodriguez, 564 F.3d 735, 737 (5th Cir.
   2009); cf. Fed. R. App. P. 3(b)(2).
          A district court’s transfer order is an appealable collateral order over
   which we have jurisdiction. In re Bradford, 660 F.3d 226, 228-29 (5th Cir.



          *
            Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.




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Case: 20-30569      Document: 00515687565           Page: 3   Date Filed: 12/29/2020




                                    No. 20-30569
                                   & No. 20-30619

   2011). But because a transfer order is not a final order as described in 28
   U.S.C. § 2253(c)(1), Franklin does not need a COA to appeal the transfer
   order. See Fulton, 780 F.3d at 688.
          Where a Rule 60(b) motion following the denial of collateral relief
   seeks to add a new claim or attacks the federal court’s previous resolution of
   a claim on the merits, the motion should be construed as a successive habeas
   application. See Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005) (addressing
   a Rule 60(b) motion in a 28 U.S.C. § 2254 proceeding); United States v.
   Hernandes, 708 F.3d 680, 681-82 (5th Cir. 2013) (applying Gonzalez to
   analyze a Rule 60(b) motion filed in a § 2255 proceeding). We have
   previously applied Gonzalez to motions under both Federal Rules of Civil
   Procedure 59(e) and 60(b). See Williams v. Thaler, 602 F.3d 291, 303 (5th Cir.
   2010) (§ 2254 case). However, the Supreme Court recently held that Rule
   59(e) motions do not constitute successive habeas applications and that the
   rationale of Gonzalez does not apply to such motions. Banister v. Davis, 140
   S. Ct. 1698, 1705-11 (2020).
          Here, Franklin titled his post-judgment motion as seeking relief under
   Rule 60(b), but the motion was filed within the 28-day period following the
   entry of judgment during which a Rule 59(e) motion may be filed. See
   Fed. R. Civ. P. 59(e). As we have explained, “[a] motion asking the court
   to reconsider a prior ruling is evaluated either as a motion to ‘alter or amend
   a judgment’ under Rule 59(e) or as a motion for ‘relief from a final judgment,
   order, or proceeding’ under Rule 60(b),” depending on “when the motion
   was filed.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir.
   2012). Such a motion is construed as one under Rule 59(e) if filed within 28
   days of the judgment being challenged and as one under Rule 60(b) if filed
   more than 28 days after the challenged judgment. Id. Therefore, the district
   court erred in treating Franklin’s post-judgment motion as a Rule 60(b)
   motion, recharacterizing it as a successive § 2255 motion, and transferring it



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Case: 20-30569     Document: 00515687565           Page: 4   Date Filed: 12/29/2020




                                   No. 20-30569
                                  & No. 20-30619

   to this court for authorization. See Banister, 140 S. Ct. at 1710-11; Demahy,
   702 F.3d at 182 & n.2.
          Accordingly, the district court’s transfer order is VACATED, and
   the case is TRANSFERRED back to the district court for further
   proceedings consistent with this opinion. Franklin’s motion for authorization
   to file a successive § 2255 motion is DENIED as moot, and his motion for a
   COA is DENIED as unnecessary.




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