IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10132

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRUCE J. DELLERE,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CV-1167

Before DAVIS, JONES, and HAYNES, Circuit Judges.

PER CURIAM:*

Bruce J. Dellere, federal prisoner # 39587-177, pleaded guilty to 

transportation and possession of child pornography; he received concurrent 

sentences of 224 and 120 months, respectively. In 2012, Dellere filed a 28 

U.S.C. § 2255 motion challenging these convictions. In his reply to the 

Government’s response, Dellere raised new grounds for relief, including a 

contention that the search of his home and seizure of his computer violated the 

Fourth Amendment and that his guilty plea was rendered involuntary because 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2015

Lyle W. Cayce

Clerk

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the Government withheld his insulin. The district court ultimately denied 

relief on Dellere’s § 2255 motion; the court concluded that the claims presented 

for the first time in Dellere’s reply were untimely. Dellere then filed a motion, 

purportedly pursuant to Federal Rule of Civil Procedure 60(b), repeating the

Fourth Amendment and involuntary plea claims from his reply, asserting that 

he was raising the allegations for the first time, and contending that he was 

relying on newly discovered evidence in support of these grounds for relief. The 

district court construed this motion as a successive § 2255 motion.

Before a successive § 2255 motion may be filed in the district court, the 

movant must obtain from this court an order authorizing the district court to 

consider the motion. See § 2255(h); 28 U.S.C. § 2244(b)(3)(A) & (C). Dellere 

seeks a certificate of appealability (COA) to appeal the district court’s order 

transferring his postjudgment motion to this court so that he could seek leave 

to file a successive § 2255 motion. Because “a transfer order under 28 U.S.C. 

§ 1631 is not a final order within the meaning of [28 U.S.C.] § 2253(c)(1)(B), . . . 

the appeal of such an order does not require a COA.” United States v. Fulton, 

780 F.3d 683, 688 (5th Cir. 2015). Therefore, we DENY, as unnecessary, 

Dellere’s motion for a COA.

Dellere maintains that his Rule 60(b) motion is proper because he is not 

raising claims that he presented in his original § 2255 motion. He did, 

however, present the allegations in his reply, and the district court addressed 

them in its denial of § 2255 relief. Even if, as Dellere contends, his assertions 

were based on new evidence, an attempt to present “‘newly discovered 

evidence’” in support of a claim that has already been denied should be 

construed as a successive pleading. Gonzalez v. Crosby, 545 U.S. 524, 531 

(2005) (28 U.S.C. § 2254 case). Moreover, if Dellere were correct in his 

contentions that he was seeking to raise “new” claims, “[a] motion that seeks 

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to add a new ground for relief . . . will of course qualify” as a successive 

pleading. Gonzalez, 545 U.S. at 532.

Given the foregoing, the district court properly determined that Dellere’s 

Rule 60(b) motion constituted a successive § 2255 motion and that he must 

obtain permission to file under § 2244(b)(3)(A). Accordingly, we AFFIRM the 

order of the district court. We further note that, in a separate proceeding, the 

clerk of this court dismissed Dellere’s motion for authorization to file a 

successive § 2255 motion after he had failed to comply with this court’s 

directives for filing a motion for authorization under § 2255(h). We therefore 

REMAND with instruction that the district court dismiss the new civil 

proceeding opened with the Rule 60(b) motion. See Fulton, 780 F.3d at 689.

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