Case: 15-10056      Document: 00513044137         Page: 1    Date Filed: 05/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 15-10056                            May 14, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk


VAN LEE BREWER,
                                                 Petitioner−Appellant,
versus
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division ,
                                                 Respondent-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-2332




Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *

       Van Brewer, Texas prisoner # 527494, serving a sentence for sexual
assault, filed a 28 U.S.C. § 2254 application that was denied by the district
court in 1996. See Brewer v. Johnson, No. 96-10449, 

(5th Cir.
1997). In 2001, forensic DNA testing conducted by the state confirmed that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-10056

Brewer’s DNA was on biological materials collected from the victim after the
assault. See Ex parte Brewer, No. 05-08-00598-CV, 

, at *1
(Tex. App.―Dallas 2009, no pet.).

      Under the Antiterrorism and Effective Death Penalty Act of 1996, a
prisoner who wishes to file a second or successive § 2254 application must
obtain permission from the court of appeals. See 28 U.S.C. § 2244(b)(3)(A).
Brewer seeks a certificate of appealability (“COA”) to appeal the district court’s
order transferring his § 2254 application to this court so that he could seek
leave to file a successive § 2254 application under § 2244(b)(3)(A). Because “a
transfer order under 28 U.S.C. § 1631 is not a final order within the meaning
of [28 U.S.C.] § 2253(c)(1)(B), . . . the appeal of such an order does not require
a COA.” United States v. Fulton, 

, 688 (5th Cir. 2015). Therefore,
we DENY, as unnecessary, Brewer’s motion for a COA as unnecessary.

      Brewer claims that his current application is not successive because it is
based on the post-conviction DNA testing that proves that the skirt from which
the original serology report was made belonged to Jocelyn Rutledge, who had
been sexually assaulted on April 12, 1989, rather than Joycelyn Regledge, the
victim who testified that she was sexually assaulted two days earlier. In a
prior motion for authorization to file a successive § 2254 application, Brewer
maintained, inter alia, that the post-conviction DNA testing was falsified by
the use of DNA obtained from him while he was incarcerated.

      Given the foregoing, the district court properly determined that Brewer
could not file his § 2254 application unless he obtained permission to do so
under § 2244 (b)(3)(A). See Adams v. Thaler, 

, 322 (5th Cir. 2012).
Accordingly, we AFFIRM the order of the district court. We further note that
in a separate proceeding, the clerk of this court denied Brewer authorization
to file a successive § 2254 application after he had failed to comply with this
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                                No. 15-10056

court’s directives for filing a motion for authorization under § 2244(b)(3). We
therefore REMAND with instruction to dismiss Brewer’s § 2254 application for
want of jurisdiction. See 

.




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