Opinion
3:02-CV-2513-N
December 12, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof; this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is the Director of the TDCJ-ID. No process has been issued in this case.
Statement of the Case: Following Petitioner's plea of not guilty, a jury found him guilty of aggravated sexual assault in Criminal District Court Number 2 of Dallas County, Texas, Cause No. F92-41162-JI. Punishment was assessed at thirty-eight years imprisonment. (Pet. at p. 2). On February 21, 1997, the Fifth District Court of Appeals at Dallas affirmed the judgment of conviction. (Id. at 3). The Texas Court of Criminal Appeals refused a petition for discretionary review on October 29, 1997. (Id.).
Petitioner has filed two prior federal habeas corpus petitions pursuant to 28 U.S.C. § 2254, challenging his aggravated sexual assault conviction. See Anders v. Johnson, 3:98-CV-1563-G (N.D. Tex., Dallas Div.); Anders v. Johnson, 3:00-CV-2550-R (N.D. Tex., Dallas Div.). On December 3, 1998, the district court dismissed the first petition without prejudice for failure to exhaust state court remedies, and on April 11, 2001, it dismissed the second petition as barred by the one-year limitation period. See 28 U.S.C. § 2244(d). Petitioner appealed the latter ruling. On October 15, 2001, the United States Court of Appeals for the Fifth Circuit denied Petitioner's request for a certificate of appealability.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his conviction for aggravated sexual assault. He asserts (1) he is actually innocent; (2) he was denied effective assistance of counsel throughout the criminal proceedings; (3) the prosecutor failed to give written notice of extraneous offenses; and (4) he was denied the right to represent himself at trial.
Findings and Conclusions: The instant petition is subject to the screening provisions set out in 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That section provides that a second or successive habeas petition pursuant to § 2254 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997); see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (addressing a similar provision applicable to second or successive motions pursuant to 28 U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the amendments to § 2244 "simply transfer from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)."
The claims which Petitioner seeks to raise in this habeas action were available to him when he filed his second federal habeas petition. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). They are, therefore, "second or successive" under the AEDPA. See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it "raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ.").
Petitioner raised grounds two, three and four of the present petition in the petition filed in No. 3:02-CV-2550. (See grounds two, four and six in pet. filed in 3:02-CV-2550).
In the memorandum in support, Petitioner asserts that neither of his prior habeas petitions were adjudicated on the merits. He cites Green v. White, 223 F.3d 1001 (9th Cir. 2000), for the proposition that a habeas petition filed after a prior petition was dismissed for failure to exhaust state remedies is not successive because the earlier petition was not adjudicated on the merits. Green relied on Slack v. McDaniel, 529 U.S. 473, 486 (2000). However, Green and Slack are distinguishable from this case where the second habeas petition was dismissed as time barred. A dismissal on statute of limitations grounds is tantamount to a merits ruling. It is critically different from a dismissal without prejudice for failure to exhaust state court remedies, which does not prevent federal habeas review at a later date. As such the magistrate judge concludes the present petition is second or successive.
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file the present petition, this court lacks jurisdiction to consider the same. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, the present petition should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus be dismissed for want of jurisdiction, but without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).
The Clerk will mail a copy of this recommendation to Petitioner.