Appeal from the United States District Court for the Northern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Frank Lawrence Gatto, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX.
KENDRICK JERMAINE FULTON, also known as Ken Fulton, Defendant - Appellant, Pro se, Bastrop, TX.
Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
This appeal by Kendrick Jermaine Fulton (" Fulton" ) concerns the district court's transfer of his second motion under 28 U.S.C. § 2255. For the reasons below, we AFFIRM the district court's transfer order.
Previously, this court affirmed Fulton's conviction for drug-related conspiracy to possess with intent to distribute, along with the resulting 400-month sentence, which Fulton is now serving as federal prisoner # 30080-177. The district court dismissed Fulton's initial § 2255 motion and, upon Fulton's appeal, this court denied a certificate of appealability (" COA" ). Importantly, in his initial § 2255 motion, Fulton asserted a claim that, inter alia, Fulton received ineffective assistance of counsel (" IAC" ) at the plea-bargaining stage, specifically that Fulton's counsel provided incomplete information which prevented Fulton from making an informed decision whether to accept a plea offer by the Government. After an evidentiary hearing, the magistrate judge made two findings regarding this claim, first that the performance of Fulton's counsel was not deficient, since counsel adequately informed Fulton of the plea offer and the sentencing effect should Fulton accept the offer; and second, assuming counsel's deficient performance, that Fulton had not shown prejudice since he failed to proffer evidence of his serious consideration of the plea offer. In his second § 2255 motion, Fulton again asserts his claim of IAC at the plea-bargaining stage, based on the same allegations as his initial § 2255 motion. The district court transferred the motion to this court as a successive § 2255 motion, and denied Fulton's subsequent motion for a COA.
In a separate proceeding, Fulton filed a motion for authorization to file a successive
§ 2255 petition, which this court denied. Notably, Fulton expressly reiterated the same IAC argument as one of his bases for a successive motion. Fulton then filed a motion for a COA in this proceeding, which this court initially denied. On reconsideration, however, we ultimately granted a COA on two issues: " (1) whether a COA is required, i.e., whether the district court order transferring appellant's . . . § 2255 motion to this court is a final order as envisioned by 28 U.S.C. § 2253(c)(1)(B), and (2) whether the district court erred by transferring the § 2255 motion as a successive habeas petition."
II. Whether district court erred in transferring Fulton's § 2255 petition as successive
Since the question of whether a petition is in fact successive is a threshold jurisdictional matter, we first address the second issue and consider the propriety of the district court's transfer on the basis of successiveness. For the reasons explained below, we hold that Fulton's second petition is successive, ...