IN THE UNITED STATES COURT OF APPEALS 

 FOR THE FIFTH CIRCUIT 

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No. 13-10606

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In re: ROBERT PRESTON, JR.,

 Movant

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Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:12-CV-1995

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Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM*:

Robert Preston, Jr., Texas prisoner # 326915, is currently serving a life

sentence for murder and aggravated robbery convictions. Preston was also

previously convicted of robbery by assault with a firearm in 1974 and felony

possession of a firearm in 1979. Beginning in 1989, Preston filed various pro

se habeas applications under 28 U.S.C § 2254. Preston’s most recent habeas

petition, filed in 2012, challenges his 1974 conviction for robbery by assault

with a firearm on due process and actual innocence grounds. On June 7,

2013, the district court transferred the petition to this court as an

unauthorized successive § 2254 application, without ruling on the merits or

procedural barriers that the government asserts bar Preston’s claim. Preston

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2014

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR.R. 47.5, the court has determined that this opinion should not be published and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.

 Case: 13-10606 Document: 00512500206 Page: 1 Date Filed: 01/14/2014
then filed a motion with this court requesting the transfer of his case back to

the district court. The Clerk took no action, explaining that Preston must

seek from this court authorization to file a successive § 2254 application. 28

U.S.C. § 2244 (b)(3)(A). Preston thereafter filed a motion that, with the

benefit of the liberal construction this court affords filings by pro se

petitioners, challenges whether his petition is in fact successive.

This court considers a petition successive if it represents “a second

attack by federal habeas petition on the same conviction.” Hardemon v.

Quarterman 516 F.3d 272, 275-76 (5th Cir. 2008). Although an attempt to

bring another claim that could have been brought in a previous petition

qualifies as successive, an attempt to challenge another conviction which

could have previously been challenged does not qualify as successive. Id.

Rather, a petitioner is permitted, but not required, to challenge separate

convictions in a single § 2254 petition. Id. 

The government opposes Preston’s current § 2254 petition, asserting

that he has previously challenged his 1974 conviction for robbery by assault

in prior § 2254 applications, and thus it is successive and should be dismissed

given that this court has not authorized Preston to file a successive

application. The government however, fails to provide documentary support

for the assertion that Preston has previously challenged his 1974 conviction

for robbery by assault with a firearm. The documents available to this court

do not support the government’s assertion that Preston has previously

challenged his 1974 robbery by assault conviction. Preston’s 1989 habeas

petition appears to have challenged a 1981 aggravated robbery conviction. 

Likewise, the 1991 habeas petition indicates that Preston challenged his

aggravated robbery conviction on a Sixth Amendment ineffective assistance of

counsel claim. The available records do not support the government’s

contention that Preston has previously challenged his 1974 robbery

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conviction, and thus Preston’s instant petition is not successive, as it

challenges a different conviction than those challenged in his previous § 2254

applications. See Hardemon 516 F.3d at 275.

Accordingly, it is ORDERED that Preston’s application to seek

authorization to file a successive petition is DISMISSED AS MOOT, given

that his petition is not successive 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