Lanier v. Lumpkin

United States Court of Appeals
for the Fifth Circuit

No. 19-50975

Joe Leon Lanier,

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CV-8

Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Joe Leon Lanier, Texas prisoner # 866198, seeks leave to proceed in
forma pauperis (IFP) on appeal from the district court’s order construing his
Federal Rule of Civil Procedure 60(b)(6) motion as an unauthorized
successive 28 U.S.C. § 2254 application and transferring it to this court. In

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2020

Lyle W. Cayce
Clerk
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No. 19-50975
2
his motion, Lanier alleged: (1) he was denied the assistance of counsel after
his sentencing during the period for seeking a new trial; (2) his appellate
counsel rendered ineffective assistance; and (3) he was denied counsel during
his state habeas proceeding to assist in raising a claim that his trial counsel
rendered ineffective assistance.
By moving to proceed IFP on appeal, Lanier is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). To obtain IFP status, Lanier must
show both financial eligibility and a nonfrivolous issue for appeal. See Carson
v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Even if Lanier can satisfy the financial-eligibility requirement, he has
not shown a nonfrivolous appellate issue. See id. Lanier contends that his
Rule 60(b)(6) motion was not a successive § 2254 application because the
motion alleged defects in the integrity of his first § 2254 proceeding. In
particular, he contends that he was entitled to Rule 60(b)(6) relief in light of
three Supreme Court cases that issued after the proceeding and were
favorable to him: Buck v. Davis, 137 S. Ct. 759 (2017); Trevino v. Thaler, 569
U.S. 413 (2013); and Martinez v. Ryan, 566 U.S. 1 (2012).
Lanier’s case is distinguishable from these three decisions, given that
his Rule 60(b)(6) motion did not seek to overcome a procedural default. See
Buck, 137 S. Ct. at 767, 779-80; Trevino, 569 U.S. at 417; and Martinez, 566
U.S. at 17. Further, we have held that neither Martinez nor Trevino have been
made retroactively applicable to cases on collateral review. See Clark v. Davis,
850 F.3d 770, 784 (5th Cir. 2017). Thus, Buck, 137 S. Ct. at 779-80, is
inapposite. Also, contrary to Lanier’s arguments, a motion filed in a habeas
proceeding asserting that a change in the law is a reason justifying relief,
although labeled a Rule 60(b)(6) motion, is in substance a successive habeas
application. See Gonzalez v. Crosby, 545 U.S. 524, 530, 531 (2005). Further,
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Lanier concedes that his Rule 60(b)(6) motion presented claims that were
unavailable to him when he filed his initial § 2254 petition. A motion
presenting new claims is likewise a successive habeas application in
substance. See id. at 531-32.
For these reasons, the district court did not err in construing Lanier’s
Rule 60(b)(6) motion as an unauthorized successive § 2254 application and
transferring it to this court. See id.; United States v. Fulton, 780 F.3d 683, 686
(5th Cir. 2015). We, therefore, need not consider Lanier’s challenge to the
district court’s alternative timeliness ruling. See Hinojosa v. Horn, 896 F.3d
305, 310 n.2 (5th Cir. 2018)
Accordingly, we DENY the motion to proceed IFP on appeal and
DISMISS Lanier’s appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24;
5th Cir R. 42.2. Lanier is WARNED that future frivolous, repetitive, or
otherwise abusive filings will invite the imposition of sanctions, which may
include dismissal, monetary sanctions, and restrictions on his ability to file
pleadings in this court and any court subject to this court’s jurisdiction.
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