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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40591

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS ALEJANDRO GARZA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:08-CV-496

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Luis Alejandro Garza, federal prisoner # 92434-079, convicted of four

counts of violating federal drug laws, was sentenced to four concurrent 324-

month terms of imprisonment. He filed a 28 U.S.C. § 2255 motion, requesting

permission to file an out-of-time appeal and based on claimed ineffective

assistance of counsel for failing to prosecute an appeal. The district court

granted relief, and our court subsequently affirmed the convictions and

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2010

Charles R. Fulbruge III

Clerk

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No. 09-40591

2

sentences. United States v. Garza, 275 F. App’x 377 (5th Cir.), cert. denied, 129

S. Ct. 423 (2008). 

Garza filed a second § 2255 motion, challenging claimed errors during his

trial. The district court dismissed the motion for lack of jurisdiction, concluding:

the motion was successive; and, Garza had failed to obtain authorization from

our court to file it. In the light of a circuit split on the question, the district court

granted Garza a certificate of appealability for whether a subsequent § 2255

motion is barred as a successive motion under § 2255(h) when it raises issues

that could have been raised in the initial § 2255 motion.

Review of a district court’s dismissal of a § 2255 motion as an

unauthorized successive motion is de novo. See United States v. Orozco-Ramirez,

211 F.3d 862, 865 (5th Cir. 2000). Garza’s contention that the district court

erred in dismissing his second § 2255 motion as an unauthorized successive

motion is foreclosed by our decision in Orozco-Ramirez. See id. at 869-71.

Because Garza’s claims regarding his trial were available to him when he filed

his initial § 2255 motion, they are successive. See id. His reliance on United

States v. West, 240 F.3d 456 (5th Cir. 2001), is misplaced: West clarified the

procedure to be followed by a district court in granting an out-of-time appeal, id.

at 458-59; it did not address whether a subsequent § 2255 motion is successive

within the meaning of 28 U.S.C § 2244. 

AFFIRMED.

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No. [Case Number]

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EMILIO M. GARZA, Circuit Judge, specially concurring:

I concur in the per curiam opinion in its entirety, since our circuit

authority, based on United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir.

2000), requires us to find Garza’s second § 2255 petition to be an unauthorized

successive motion. 

However, the better view is expressed by the majority of circuits: a § 2255

petition is not considered to be successive if a prior § 2255 petition requests only

to reinstate the petitioner’s right to appeal and does not attack the judgment on

the merits. See, e.g., Johnson v. United States; 362 F.3d 636, 638 (9th Cir. 2004);

In re Olabode, 325 F.3d 166, 172–73 (3d Cir. 2003); Vasquez v. Parrott, 318 F.3d

387, 392 n.1 (2d Cir. 2003); McIver v. United States, 307 F.3d 1327, 1332 (11th

Cir. 2002); In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999); Shepeck v. United

States; 150 F.3d 800, 800–01 (7th Cir. 1998); United States v. Scott, 124 F.3d

1328, 1330 (10th Cir. 1997).

Accordingly, I would encourage the en banc court to reconsider this issue

and align our precedent with that of our sister circuits.

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