United States Court of Appeals

for the Fifth Circuit

No. 20-10069

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Kevin D. Moore, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CV-2919

USDC No. 3:07-CR-125-1

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Kevin D. Moore, federal prisoner # 36285-177, was convicted by a jury 

of shipping child pornography as well as possession of child pornography and 

was sentenced to 360 months of imprisonment. The district court denied his 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

February 11, 2021

Lyle W. Cayce

Clerk

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No. 20-10069

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28 U.S.C. § 2255 motion, and a judge of this court denied his motion for a 

certificate of appealability (COA). Moore then filed a second § 2255 motion,

raising a claim of ineffective assistance of counsel. The district court 

construed his motion as an unauthorized successive § 2255 motion and 

transferred it to this court. We denied Moore’s motion for authorization to 

file a successive § 2255 motion in Case No. 19-11345.

After the district court transferred his motion, Moore filed a Federal 

Rule of Civil Procedure 59(e) motion to alter or amend the judgment, 

contending that his § 2255 motion was not successive because it raised a 

claim that could not have been raised in his original § 2255 motion in that it 

was premised on evidence that he discovered after the final adjudication of 

his original § 2255 motion. The district court denied the Rule 59(e) motion, 

and Moore timely noticed his appeal from that order. Moore’s notice of 

appeal places the propriety of the underlying judgment, the transfer order, 

before this court. See Martinez v. Johnson, 104 F.3d 769, 771 (5th Cir. 1997). 

The transfer order is an appealable collateral order over which this court has 

jurisdiction, see In re Bradford, 660 F.3d 226, 228-29 (5th Cir. 2011); a COA 

is not required, see United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).

On appeal, Moore contends that his § 2255 motion was not successive 

for the same reasons he advanced in his Rule 59(e) motion. A second or 

successive motion is one that “1) raises a claim challenging the petitioner’s 

conviction or sentence that was or could have been raised in an earlier 

petition; or 2) otherwise constitutes an abuse of the writ.” Leal Garcia 

v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009) (internal quotation marks 

and citation omitted). If the purported defect existed, or the claim was ripe, 

at the time of the prior petition, the later application is likely to be held 

successive. Id. at 222. If, however, the purported defect did not arise, or the 

claim did not ripen, until after the conclusion of the previous application, the 

later application based on that defect may be non-successive. Id. 

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In this case, the defect of which Moore complains—his trial counsel’s 

ineffective assistance for failure to convey a plea offer—necessarily existed 

at the time Moore filed his prior § 2255 motion. That the evidence of that 

defect was not discovered—or could not have been discovered—until after 

he filed his first § 2255 motion does not mean that the claim was not 

previously available. See Leal Garcia, 573 F.3d at 221-22. Thus, his § 2255 

motion is successive. Because his § 2255 motion was indeed successive and 

filed without our authorization, the district court did not err in transferring it 

for lack of jurisdiction. See Fulton, 780 F.3d at 686. Accordingly, we 

AFFIRM the district court’s transfer order. 

Given Moore’s repeated efforts to raise the same claim, he is

CAUTIONED that future frivolous, repetitive, or abusive filings may 

result in sanctions, including monetary penalties or restrictions on his ability 

to file pleadings in this court or any court subject to this court’s jurisdiction. 

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