United States Court of Appeals

for the Fifth Circuit

No. 21-60871

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Dandre Dshon Evans, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:21-CV-288

USDC No. 1:17-CR-102-1

Before Higginbotham, Duncan, and Wilson, Circuit Judges.

Per Curiam:*

Dandre Dshon Evans, federal prisoner # 20446-043, was convicted of 

two counts of possession of a firearm by a felon and was sentenced to 

consecutive terms of 120 months of imprisonment and 31 months of 

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opinion should not be published and is not precedent except under the limited 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

September 15, 2022

Lyle W. Cayce

Clerk

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imprisonment. After his first 28 U.S.C. § 2255 motion was denied, and a 

second § 2255 motion was dismissed as unauthorized, Evans filed a pro se 

“Motion for Declaration of Legal Rights.” The district court construed the

filing as a 28 U.S.C. § 2241 petition and dismissed it, without prejudice, for 

lack of jurisdiction. Evans then filed a notice of appeal. 

In the matter at hand, Evans moves this court for a COA. However, 

as a federal prisoner appealing the denial of a § 2241 petition, Evans is not 

required to obtain a COA. See Wilson v. Roy, 643 F.3d 433, 434 (5th Cir. 

2011); Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997). Accordingly, his request 

for a COA is DENIED as unnecessary. 

A § 2241 petition must be filed in the district in which the prisoner is 

confined. Reyes-Requena v. United States, 243 F.3d 893, 895 n.3 (5th Cir. 

2001). Because Evans was confined in Florida, and “the district of 

incarceration is the only district that has jurisdiction to entertain a 

defendant’s § 2241 petition,” Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 

2001), we AFFIRM the district court’s dismissal. 

Alternatively, to the extent that Evans’s Motion for Declaration of 

Legal Rights should have been construed by the district court as a timely 

motion under Federal Rule of Civil Procedure Rule 59(e) to alter or amend 

the judgment dismissing his second § 2255 motion as an unauthorized 

successive motion, the underlying judgment would be subject to review. 

Evans must obtain a COA to appeal the denial of the ruling denying his 

second § 2255 motion, and to do so he must make “a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here,

the district court’s denial is based on a procedural ruling rather than on the 

merits, the prisoner must demonstrate that “jurists of reason would find it 

debatable whether the [motion] states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it debatable whether 

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the district court was correct in its procedural ruling.” Slack v. McDaniel, 

529 U.S. 473, 484 (2000). Because his contentions as to the merits of his 

claims of ineffective assistance of counsel and district court errors at 

sentencing fail to make the required showing, Evans’s motion for a COA is 

DENIED. 

Finally, given liberal construction, Evans’s pro se COA filing seeks 

this court’s authorization to file a successive § 2255 motion. To the extent 

that Evans is reraising the same claims adjudicated in his first § 2255 motion, 

they cannot be considered. See 28 U.S.C. § 2244(b)(1); In re Bourgeois, 902 

F.3d 446, 447-48 (5th Cir. 2018) (holding that § 2244(b)(1) is incorporated 

into § 2255(h)). In any event, because Evans fails to make the required prima 

facie showing that his claims rely on newly discovered evidence or a new rule 

of constitutional law, made retroactive to cases on collateral review by the 

Supreme Court, that was previously unavailable, his motion for authorization 

is DENIED. See § 2244(b)(3)(C); § 2255(h). 

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