IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60111

In re: TIMOTHY PERRY,

Movant

Motion for an order authorizing

the United States District Court for the

Northern District of Mississippi to consider

a successive 28 U.S.C. § 2254 application

Before OWEN, HO, and DUNCAN, Circuit Judges. 

PER CURIAM: *

Following the district court’s transfer of this case to our court, Timothy 

Perry, Mississippi prisoner # T0478, moves for authorization to file a second or 

successive 28 U.S.C. § 2254 application challenging his conviction and 30-year 

sentence for sexual battery. In transferring the case, the district court 

determined that Perry’s § 2254 application was a second or successive § 2254

application.

Perry raised his first proposed claim, a claim that the Mississippi 

Supreme Court violated his due process rights when it denied his 2015 and 

2017 motions for DNA testing, in an earlier motion for authorization. We

denied authorization as unnecessary for this claim because Perry’s motions for 

DNA testing were denied after his original § 2254 application, and the claim 

 

* 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

April 10, 2019

Lyle W. Cayce

Clerk

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No. 19-60111

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was thus not successive for purposes of 28 U.S.C. § 2244(b)(3)(A). See Leal 

Garcia v. Quarterman, 573 F.3d 214, 220-24 (5th Cir. 2009). This court’s 

authorization to file a § 2254 application raising this claim is not necessary. 

See id. at 224. Moreover, the district court’s transfer order was improper, and 

we lack jurisdiction to consider the claim. See Adams v. Thaler, 679 F.3d 312, 

321 (5th Cir. 2012). 

Perry’s second proposed claim is a request that the district court order 

DNA testing pursuant to 18 U.S.C. § 3600. He complains that no DNA testing 

has ever been done on fluid samples taken from the victim and asserts that 

DNA testing would demonstrate his innocence. 

A motion for DNA testing that attacks the underlying conviction is 

properly treated as a motion for leave to file a successive § 2254 application. 

Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002). Therefore, Perry must 

make a prima facie showing that the claim satisfies § 2244(b). See Felker v. 

Turpin, 518 U.S. 651, 657 (1996); § 2244(b)(3)(C). 

Perry does not contend that this claim relies on a new rule of law. He 

argues, however, that the absence of DNA testing qualifies as “new evidence” 

because, if DNA tests were conducted, they would eliminate the possibility of 

his guilt. To meet § 2244(b)(2)’s actual innocence provision, Perry must show 

that “the factual predicate for the claim could not have been discovered 

previously through the exercise of due diligence,” § 2244(b)(2)(B)(i), and that 

“the facts underlying the claim, if proven and viewed in light of the evidence 

as a whole, would be sufficient to establish by clear and convincing evidence 

that, but for constitutional error, no reasonable factfinder would have found 

the applicant guilty of the underlying offense,” § 2244(b)(2)(B)(ii). Perry has 

not made a prima facie showing that his claim satisfies this standard. The 

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sexual abuse of the victim occurred on more than one occasion over an extended 

period of time. The fluid sample was taken at a single point in time.

In light of the foregoing, IT IS ORDERED that Perry’s motion for leave 

to file a successive § 2254 application is DENIED IN PART with respect to his 

request for leave to raise a § 2254 claim seeking DNA testing and DISMISSED 

IN PART with respect to his request for leave to raise a § 2254 claim that his 

due process rights were violated when the Mississippi Supreme Court denied 

his 2015 and 2017 motions for DNA testing. The district court’s transfer order 

is VACATED IN PART with respect to Perry’s due process claim, and the case 

is REMANDED to the district court for proceedings consistent herewith.

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