USA v. Luis Garza, No. 09-40591 (5th Cir. 2010)
Annotate this Case
The court issued a subsequent related opinion or order on August 9, 2011.
Download PDF
Case: 09-40591 Document: 00511058605 Page: 1 Date Filed: 03/22/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40591 Summary Calendar March 22, 2010 Charles R. Fulbruge III Clerk 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 324month 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-40591 Document: 00511058605 Page: 2 No. 09-40591 Date Filed: 03/22/2010 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. 2 Case: 09-40591 Document: 00511058605 Page: 3 No. [Case Number] Date Filed: 03/22/2010 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. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
