### I N THE UNI TED STATES COURT OF APPEALS

FOR THE FI FTH CI RCUI T

_____________________ No. 13-10606

_____________________ In re: ROBERT PRESTON, JR.,

Movant

__________________________

Appeal from the United States District Court f or the Northern District of Texas USDC No. 3:12-CV-1995

__________________________ Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM * :

R obert Preston, Jr., Texas prisoner # 3 26915, is currently serving a life
sentence for m urder and aggr a v ated robbery c o nvictions. P reston was also previously convicted of robbery by as s a u lt with a f irearm in 1974 and felony possession o f a firearm in 197 9. Beginning in 1989, P reston filed various p ro

se habeas applications under 28 U.S.C § 2 2 5 4

. Preston’s most recent habeas petition, filed in 2012, chall enges his 1974 conviction for robbery b y assault

w i t h a firearm on due process and actual innocence grounds. O n J u n e 7 , 2 013, the district c ourt transferred the petition to this c ourt as a n unauthorized successive § 2 254 application, without ruling on the mer i t s o r procedural barriers that the go v e r n m ent asserts bar Preston’s claim. Preston U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D January 14, 2014
Ly l e W . Cay ce Clerk

* Pur s ua nt t o 5 T H C I R

. R. 47.5, the c o ur t ha s de t e r m i ne d tha t thi s o pi ni o n s ho ul d no t be publ i s he d and i s no t pr e c e de nt

e xc e pt unde r t he l i m i t e d c i r c um s t a nc e s s e t f o r th i n 5 T H C I R

. R. 47.5.4. Case: 13-10606 Document: 00512500206 Page: 1 Date Filed: 01/14/2014then f

iled a motion with this court request i ng the transfer of h is case back to the district court. The Clerk t ook n o action, explaining t hat Preston must seek from this court authorization to f i l e a s uccessive § 2254 application. 28 U.S.C. § 2244 (b)(3)(A). Preston thereaft e r f i l e d a motion that, w ith the b e n e fit of the liberal construction this court affords filings b y pro s e petitioners, challenges whether his petition is in fact successive. This court c onsiders a petition successive if it represents “a s e cond attack by federal habeas petition on the same c o n v i c t ion.” Hardemon v. Quarterman 516 F.3d 272, 275-76 ( 5 th Cir. 2008). Although a n a t t e mpt to bring ano t h er claim t hat could have b een brought in a previous petition qualifies as successive, a n attempt to c h alle n g e another conviction which could have p reviously been challenged d oes not q u a l i fy as successive. I d. Rather, a petitioner i s p e r m itted, b ut n ot required, to challenge separate convictions in a single § 2254 petition. Id

. The government op p o s e s Preston’s current § 2254 p e tition, a sserting that he has previously c hallenged his 1974 convictio n f o r robbery b y assault
in p r i o r § 2 2 54 applications, and thus it is successive and should be dismissed

g iven that this court has not authorized Preston to file a successiv e applica t i o n

. T he government however, fails to provide documentary support for the assertion t hat Preston has previously challenged his 1974 convic t ion for robbery by a ssault with a firearm. T he docu m e n t s a v a ilable to t h is court do n ot support the g o v ernment’s assertion that Preston has previously challenged his 1974 robbery by assault c onviction. Preston’s 1989 habeas petition appears to have c hallenged a 1981 aggravated robbery conviction. Likewise, t h e 1991 habeas petition indicates that P reston challenged his aggravated robbery conviction on a Sixth Amendment ineffective assistance of counsel claim. The available r e cords do not s upport the government’s contention that Preston has previously challenged his 1974 robbery Case: 13-10606 Document: 00512500206 Page: 2 Date Filed: 01/14/2014conviction, a n d thus Preston’s instant p etition is not successive, as it

challenges a d ifferent conviction than those challenged in his previous § 2254 applications. See Hardemon 516 F.3d at 275. A c c o rdingly, it is ORDERED that Preston’s application t o seek authorization t o file a succ e s s i v e petition is DISMISSED AS MOOT, given that his petition is not s uccessive within the meaning of § 2254. The case is REMANDED to the district court for further proceedings. Case: 13-10606 Document: 00512500206 Page: 3 Date Filed: 01/14/2014