United States Court of Appeals

for the Fifth Circuit ____________

No. 24-60003

Summary Calendar

____________

Anthony Isby, 

Petitioner—Appellant, 

versus

Burl Cain, Commissioner, Mississippi Department of Corrections, 

Respondent—Appellee. 

______________________________

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 1:21-CV-187

______________________________

Before Jolly, Jones, and Willett, Circuit Judges.

Per Curiam:*

Anthony Isby, Mississippi prisoner # R3522, challenges the district 

court’s determination that it lacked jurisdiction to consider his second-intime 28 U.S.C. § 2254 application and transferring the application to this 

court for consideration of whether the application was successive. Isby 

contends that his application is not successive because he is challenging a 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 30, 2024

Lyle W. Cayce

Clerk

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No. 24-60003

2

decision of the Mississippi Supreme Court denying his application for 

postconviction relief which occurred after the filing of his initial § 2254 

application.

Before an applicant files a second or successive habeas application, the 

prisoner must obtain authorization from this court. 28 U.S.C. 

§ 2244(b)(3)(A). “If a petitioner files a second or successive petition in the 

district court without first obtaining authorization from the court of appeals, 

the district court may transfer the petition to the court of appeals . . . because 

the district court lacks jurisdiction over the petition.” Rivers v. Lumpkin, 99 

F.4th 216, 220 (5th Cir. 2024) (internal quotation marks and citation 

omitted), petition for cert. filed (U.S. June 24, 2024) (No. 23-1345). We have 

“appellate jurisdiction over the district court’s transfer order, and . . . apply 

de novo review to the district court’s determination that it lacked jurisdiction 

to consider the claims [Isby] raised in his second-in-time petition.” Id. at 219.

A § 2254 application is not successive merely because it is numerically 

second. Leal Garcia v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009). Instead, a § 2254 application is deemed successive when it challenges the applicant’s original state court conviction and not “a new judgment for the first 

time.” Magwood v. Patterson, 561 U.S. 320, 333 (2010). Unlike the petitioner 

in Magwood and despite Isby’s assertions to the contrary, Isby’s state and federal applications did not disturb the state judgment pursuant to which he is 

in custody. The Mississippi Supreme Court decision denying his application 

for postconviction relief does not constitute a “new judgment” because a 

new sentence was not imposed. See In re Lampton, 667 F.3d 585, 588 (5th 

Cir. 2012). Instead, Isby is again challenging the validity of the same state 

court judgment that he challenged in his initial § 2254 application. Accordingly, the district court did not err in determining that Isby’s numerically second § 2254 application was successive. See Magwood, 561 U.S. at 333.

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AFFIRMED.

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