Case: 14-10147   Date Filed: 06/03/2015   Page: 1 of 3


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10147
                        Non-Argument Calendar
                      ________________________

              D.C. Docket Nos. 4:13-cv-00221-WTM-GRS,
                        4:95-cr-00123-WTM-3

ANDRE C. MYERS,

                                                          Petitioner-Appellant,


                                  versus


UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                              (June 3, 2015)

Before WILLIAM PRYOR, MARTIN and JULIE CARNES, Circuit Judges.

PER CURIAM:
               Case: 14-10147     Date Filed: 06/03/2015    Page: 2 of 3


      Andre Myers, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his fourth 28 U.S.C. § 2255 motion as second or successive.

In 1995, Myers was convicted of one count of distribution of a controlled

substance and one count of conspiracy to possess cocaine base and cocaine

hydrochloride with the intent to distribute. Because he had prior felony drug

convictions, he was subject to an enhanced sentence pursuant to 21 U.S.C. §

841(b)(1)(A) and was sentenced to life imprisonment.

      In 2008, after the district court had already denied Myers’s first § 2255

motion on the merits, a state court vacated one of Myers’s previous felony drug

convictions. Since that time, Myers has filed an additional three § 2255 motions

arguing that he is actually innocent of his enhanced sentence. Each of these

motions has been dismissed as second or successive.

      Federal courts generally may not consider second or successive § 2255

motions. 28 U.S.C. § 2255(h). However, “the phrase second or successive is not

self-defining and it does not refer to all habeas petitions filed second or

successively in time.” Boyd v. United States, 

, 1301 (11th Cir.

2014). Myers’s current motion—his fourth in time—is not second or successive to

his initial § 2255 motion, denied on the merits in 2002, because his actual

innocence claim based on the vacatur of his state-court conviction did not exist at

that time. See 

His current motion is also not second or successive to


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              Case: 14-10147    Date Filed: 06/03/2015   Page: 3 of 3


his 2009 or 2012 motions because those motions were not adjudicated on the

merits. See 

the government concedes, the district court erred

when it dismissed Myers’s motion as second or successive.

      VACATED AND REMANDED.




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