* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10072

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DAVID ANTOINE JOHNSON

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:01-CR-185-1

Before KING, DENNIS, and OWEN, Circuit Judges. 

PER CURIAM:*

David Antoine Johnson, federal prisoner # 27125-177, appeals the district

court’s dismissal of his motion entitled,“CORRECTION AND REDUCTION OF

SENTENCE UNDER 18 U.S.C. § 3742 AND RULE 35, AND IN ALTERNATIVE

MOTION TO WITHDRAW PLEA UNDER FED. R. CRIM. P. 11.” In that

motion, Johnson challenged his sentence and conviction on various bases. On

appeal, Johnson argues that the district court erred by recharacterizing his

motion as arising under 28 U.S.C. § 2255 and dismissing it as an unauthorized

United States Court of Appeals

Fifth Circuit

F I L E D

December 18, 2008

Charles R. Fulbruge III

Clerk
No. 08-10072

1

Johnson argues that the district court was required to provide notice that it intended

to treat his motion as a § 2255 petition. However, the Supreme Court has held only that a

district court must provide notice when the motion is treated as the party’s first § 2255

petition. See Castro v. United States, 540 U.S. 375, 382 (2003). Because Johnson had already

filed his first § 2255 motion, we see no error in the district court’s treatment of Johnson’s

motion as a successive § 2255 petition. 

2

successive motion. He asserts that his motion actually arose under 18 U.S.C.

§ 3742 and FED. R. CRIM. P. 11 and 35.

Johnson’s motion was not authorized under any of the cited legal

authorities. The unauthorized motion was therefore without jurisdictional basis.

See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Because the

district court construed the motion as an attempted successive § 2255 motion,

dismissal for lack of jurisdiction was proper due to Johnson’s failure to obtain

permission from this court to file a successive § 2255 motion. See United States

v. Key, 205 F.3d 773, 774 (5th Cir. 2000).1

On appeal, Johnson alternatively requests a certificate of appealability

(COA) in order to file a second or successive § 2255 motion in the district court.

Johnson is conflating two different requirements. Permission to file a second or

successive § 2255 motion in district court arises under 28 U.S.C. §§ 2244(b)(3)(A)

and 2255. A COA is not required. To the extent he seeks a COA, that request

is unnecessary. To the extent he seeks permission to file a second or successive

§ 2255 motion in district court, that request is denied as improperly submitted

without prejudice to his ability to submit a proper request under

§§ 2244(b)(3)(A) and 2255.

The instant appeal is without arguable merit and is therefore dismissed

as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.

R. 42.2.

APPEAL DISMISSED; REQUEST FOR PERMISSION TO FILE A

SECOND OR SUCCESSIVE § 2255 MOTION DENIED.