United States v. Kendrick Fulton
2015 U.S. App. LEXIS 4173
| 5th Cir. | 2015Background
- Kendrick Fulton, serving a 400‑month federal sentence for drug conspiracy, previously filed a § 2255 motion alleging ineffective assistance of counsel (IAC) at the plea stage; that initial § 2255 was dismissed and COA denied on appeal.
- At the evidentiary hearing on the first § 2255, the magistrate found counsel's performance was not deficient and, alternatively, Fulton failed to show prejudice because he did not proffer that he seriously considered the plea.
- Fulton filed a second § 2255 repeating the same IAC plea‑stage claim, now citing Lafler and Frye (decided after his first motion).
- The district court concluded the second petition was successive and transferred it to the Fifth Circuit under § 1631 for lack of jurisdiction; Fulton’s motion for COA was denied by the district court.
- Fulton argued the second petition should not be successive because counsel abandoned him after the first evidentiary hearing, depriving him of a full and fair opportunity to pursue his claims; the record contradicted that claim.
- The Fifth Circuit affirmed the transfer, rejected Fulton’s abandonment-based exception, and instructed the district court to dismiss the § 2255 for lack of jurisdiction; appointment of counsel on the abandonment theory was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second § 2255 is successive | Fulton: claim is new because it relies on Lafler/Frye decided after first petition | Gov: claim repeats the same IAC claim and could have been raised earlier; thus successive | Held: Petition is successive; timing of new cases alone does not avoid successiveness |
| Whether counsel’s alleged abandonment makes the second petition non‑successive | Fulton: abandonment deprived him of full and fair opportunity, so fairness should permit the new filing | Gov: record shows counsel was appointed only for the hearing and Fulton filed objections pro se; no basis for equitable exception | Held: Record contradicts abandonment; court declined to adopt an abandonment‑based exception and rejected Fulton’s fairness argument |
| Whether the district court erred by transferring (vs dismissing) the successive § 2255 | Fulton: transfer improperly treated his filing as successive final order requiring COA | Gov: district court may transfer unauthorized successive petitions to the circuit under § 1631 | Held: Transfer was proper under § 1631 because district court lacked jurisdiction due to successiveness |
| Whether appeal of a § 1631 transfer of a successive § 2255 requires a COA under § 2253(c)(1)(B) | Fulton: COA required for appeal of transfer order | Gov: transfer orders are collateral and separate from merits; COA not required for such transfers | Held: A § 1631 transfer is not a "final order" under § 2253(c)(1)(B) and does not require a COA; appealable as a collateral order but not within § 2253(c) COA scope |
Key Cases Cited
- Lafler v. Cooper, 132 S. Ct. 1376 (Sup. Ct.) (plea‑stage IAC standards)
- Missouri v. Frye, 132 S. Ct. 1399 (Sup. Ct.) (defense counsel duty to communicate plea offers)
- Harbison v. Bell, 556 U.S. 180 (2009) (COA requirement pertains to final orders disposing of merits)
- In re Bradford, 660 F.3d 226 (5th Cir.) (transfer of habeas petitions under § 1631 is appealable collateral order)
- In re Cain, 137 F.3d 234 (5th Cir.) (definition of successive petition)
- Adams v. Thaler, 679 F.3d 312 (5th Cir.) (successiveness is jurisdictional)
- In re Coleman, 768 F.3d 367 (5th Cir.) (procedures for transferring successive petitions)