In re: Kim Graves
UNPUBLISHED OPINION ORDER FILED. [16-11814 Vacated and Remanded] Judge: PEH , Judge: CH , Judge: JEG; denying as unnecessary motion to file successive petition filed by Movant Mr. Kim Joe Graves [8402718-2] [16-11814]
Date Filed: 03/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
In re: KIM JOE GRAVES, also known as K-Rock,
March 1, 2017
Lyle W. Cayce
Motion 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
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Following the district court’s transfer of this case to our court, Kim Joe
Graves, federal prisoner # 33646-177, moves for authorization to file a second
or successive 28 U.S.C. § 2255 motion challenging his sentence for conspiracy
to possess with intent to distribute and to distribute 50 grams or more of a
controlled substance. In transferring the case, the district court determined
that the § 2255 motion Graves filed in November 2016 was a second or
successive § 2255 motion.
As a threshold matter, we must consider whether we have jurisdiction
over this case. See Adams v. Thaler, 679 F.3d 312, 321 (5th Cir. 2012). To
have had the authority to transfer Graves’s § 2255 case to our court, the district
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 03/01/2017
court must have lacked jurisdiction to consider Graves’s § 2255 motion because
it was second or successive. See United States v. Fulton, 780 F.3d 683, 686 (5th
Cir.), cert. denied, 136 S. Ct. 431 (2015); Adams, 679 F.3d at 321. Thus, we
first resolve whether the § 2255 motion Graves filed in November 2016
constituted a second or successive § 2255 motion. See Fulton, 780 F.3d at 685.
Graves was granted relief on a § 2255 motion he filed in 2008. See United
States v. Graves, 409 F. App’x 780, 781 (5th Cir. 2011). As a result, the district
court vacated his original sentence, resentenced him in July 2011, and issued
a second criminal judgment. A § 2255 motion challenging a new, intervening
judgment rendered following the grant of an initial § 2255 motion is not
successive. In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012) (citing Magwood
v. Patterson, 561 U.S. 320, 341-42 (2010)). “Whether a new judgment has
intervened between two habeas petitions, such that the second petition can be
filed without this [c]ourt’s permission, depends on whether a new sentence has
been imposed.” Lampton, 667 F.3d at 588.
Graves’s proposed § 2255 motion is his first challenging the new sentence
imposed in 2011 and is thus not a second or successive motion within the
meaning of § 2255(h). See id. Graves therefore does not need to obtain this
court’s authorization to file his proposed § 2255 motion. See Magwood, 561
U.S. at 323-24, 341-42.
Moreover, the district court’s transfer order was
improper, and we lack jurisdiction over the case. See Adams, 679 F.3d at 321.
Accordingly, IT IS ORDERED that Graves’s motion for authorization to
file a second or successive § 2255 motion is DENIED AS UNNECESSARY; the
district court’s transfer order is VACATED; and the case is REMANDED to the
district court for consideration of Graves’s § 2255 motion.
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