IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10041

In re: DAVID JOE KERNS,

Movant

Motion for an order authorizing

the United States District Court for the

Northern District of Texas, to consider

a successive 28 U.S.C. § 2255 motion

----------------------------------------

Consolidated With

Case No. 15-10072

DAVID JOE KERNS,

Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CV-5014

Before DAVIS, JONES, and HAYNES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

November 13, 2015

Lyle W. Cayce

Clerk

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PER CURIAM:*

David Joe Kerns, Texas prisoner # 243903, who is serving four life 

sentences for murder, moves this court for a certificate of appealability (COA) 

seeking to appeal the district court’s decision to transfer his postconviction 

application to this court based on its determination that the application 

amounted to an unauthorized successive 28 U.S.C. § 2254 application. He has 

also moved this court for authorization to file a successive § 2254 application, 

seeking to raise claims that (1) the Texas Department of Criminal Justice has 

mischaracterized his indeterminate sentences of five years to life as 

determinate life sentences; (2) he is entitled to be released from prison because, 

he says, his good time credit added to the time he has served is sufficient to 

discharge his indeterminate sentences; (3) the retroactive application of the 

rules regarding the use of good time credits to offset his sentences violates the 

Due Process and Ex Post Facto Clauses; and (4) the failure to characterize his 

sentences as indeterminate sentences and to apply good time credits to the 

sentences constitutes cruel and unusual punishment. These are the same 

claims that he presentenced in his application in the district court.

A prisoner need not obtain a COA to appeal a district court’s transfer 

order. United States v. Fulton, 780 F.3d 683 (5th Cir. 2015), cert. denied, 2015 

WL 5772739 (Nov. 2, 2015) (No. 15-6348). Accordingly, we address the merits 

of Kerns’s argument that the district court erroneously transferred the 

application to this court. A prisoner seeking to file a second or successive § 

2254 application in the district court must first receive authorization from this 

 

* 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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court. 28 U.S.C. § 2244(b)(3)(A). A district court lacks jurisdiction to consider 

a successive application if the prisoner has not received this court’s 

authorization to file it. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).

Kerns maintains that his claims challenge the manner that his sentences 

are being executed and thus, he asserts, arise under 28 U.S.C. §2241. 

However, a state prisoner who wishes to challenge prison officials’ calculation 

of his sentence must do so in a § 2254 application. See Whitehead v. Johnson, 

157 F.3d 384, 386 n.1 (5th Cir. 1998); McGary v. Scott, 27 F.3d 181, 183 (5th 

Cir. 1994).

Additionally, Kerns argues that he could not have brought his claims in 

his first § 2254 application because, he says, he only recently learned that his 

sentences were indeterminate and he became entitled to release only after he 

filed his first application. His proposed application is nonetheless successive. 

Judgment was entered against Kerns in 1974, and so he knew or could have 

known of the nature of his sentences at that time. Moreover, in Kerns’s prior 

§ 2254 application, he alleged that his good time credits were not being applied 

to his sentences, so he knew by then how the Texas Department of Criminal 

Justice was executing his sentences. Therefore, he knew or could have known 

all of the facts necessary to raise his proposed claims in his earlier application. 

See Leal Garcia v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009); see also

McCall v. Dretke, 390 F.3d 358, 362 (5th Cir. 2004) (explaining that a prisoner 

suffers actionable harm and thus may bring a § 2254 application when 

authorities determine his eligibility for release and he need not wait until he 

would otherwise be eligible for release). Accordingly, the district court properly 

determined that it lacked jurisdiction over Kerns’s unauthorized successive 

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§ 2254 application and did not err in transferring it to this court. See Fulton, 

780 F.3d at 685-86.

In his motion for authorization to file a successive § 2254 application, 

Kerns points to no new rule of constitutional law that would support his 

proposed claims. See § 2244(b)(2)(A). He does, however, identify an arguably 

new fact supporting his proposed claims. See § 2244(b)(2)(B)(i). He explains 

that he first learned in 2013, when he obtained copies of his judgments, that 

his sentences were indeterminate sentences of five years to life rather than 

simply life sentences. However, he does not explain how he could not have 

learned of the 40-year-old judgments sooner through the exercise of due 

diligence. See § 2244(b)(2)(B)(i). Thus, he has not made the required prima 

facie showing necessary to receive authorization to file his proposed successive 

application. See § 2244(b)(2), (3)(C).

Kerns’s motion for a COA is DENIED as UNNECESSARY. His motion 

for authorization to file a successive § 2254 application, two motions for judicial 

notice, and motion for hearing en banc are DENIED. The district court’s 

transfer order is AFFIRMED.

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