# United States Court **of Appeals**  **f or 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

- in

time 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 Case: 24-60003 Document: 39-1 Page: 1 Date Filed: 08/30/2024No. 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 a n 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 jurisd iction over the petition.” Rivers v. Lumpkin , 99 F.4th 216, 220 (5th Cir. 2024) (internal quotation m arks 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 sec ond

- 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 d espite 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. T he Mississippi Supreme Court decision denying his application for postconviction relief does not constitu te 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. Case: 24-60003 Document: 39-1 Page: 2 Date Filed: 08/30/2024No. 24

- 60003

3 **AFFIRMED**

. Case: 24-60003 Document: 39-1 Page: 3 Date Filed: 08/30/2024