Opinion
3:03-CV-2003-G
September 10, 2003
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 Coffield 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: A jury convicted Petitioner of robbery and assessed punishment at sixty years confinement in the 13th District Court of Navarro County, Texas, Cause No. 24,881. On December 18, 1996, the appellate court affirmed the conviction. The Texas Court of Criminal Appeals subsequently granted Petitioner an extension of time to February 18, 1997, to file a petition for discretionary review, which Petitioner failed to timely file.
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his robbery conviction. See Coy v. Johnson. 3:98-CV-2258-T (N.D. Tex., Dallas Div.). On June 22, 2000, the district court adopted the findings, conclusions and recommendation of the magistrate judge and dismissed the petition as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d). Petitioner did not appeal.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his robbery conviction. He asserts the prosecutor used a false witness statement and failed to disclose favorable evidence.
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 initial federal 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."). 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, this 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.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n. 79 F.3d 1415 (5th Cir. 1996) (en bane), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.