Opinion
3:04-CV-1290-R.
July 13, 2004
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 inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the Wynne Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID. No process has been issued in this case.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted in a bench trial of aggravated robbery and sentenced to twenty-five years imprisonment in Criminal District Court No. 5 of Dallas County, Texas, Cause No. F99-71557-UL. The Court of Appeals affirmed his conviction and sentence on direct appeal. Hereford v. State, No. 05-00-1430-CR (Tex.App.-Dallas, Sept. 27, 2001, pet. dism'd). Subsequently, Petitioner filed a state habeas corpus application which was denied without written order on the findings of the trial court. Ex parte Hereford, No. 53, 539-01 (Tex.Crim.App. Jan. 15, 2003).
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction in this case. See Hereford v. Cockrell, 3:03-CV-0566-D (N.D. Tex., Dallas Div.). On October 16, 2003, the district court adopted the recommendation of the magistrate judge and denied the habeas petition with prejudice. Id. The Fifth Circuit denied a certificate of appealability on April 23, 2004.
This prior federal petition raised nine grounds for relief: (1) he was punished by the trial judge for failing to accept a plea bargain; (2) counsel signed a written confession without his knowledge or consent; (3) he was denied the right to an examining trial; (4) the evidence was insufficient to support his conviction; (5) the trial court refused to rule on his pro se motions and coerced him into accepting representation from his attorney; (6) the prosecutor improperly withheld exculpatory evidence; (7) his right to a speedy trial was violated; (8) his sentence is excessive; and (9) he received ineffective assistance of counsel.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his conviction for aggravated robbery. He alleges one ground which was raised, at least in part, in his 2003 federal petition — i.e., that "his lawyer signed a confession and admission of guilt without his consent or knowledge . . . on December 10, 1999, well before his trial on August 4." (Petition ¶ 20).
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, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (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 claim that Petitioner seeks to raise in this habeas action was presented at least in part his initial federal petition.See Findings and Conclusions filed in Hereford v. Cockrell, No. 3:03cv0566-M at 3. It is, therefore, "second or successive" under the AEDPA. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000).
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file his present petition for habeas corpus relief, 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 Alvis Ray Hereford, #938385, TDCJ, Wynne Unit, Huntsville, Texas 77349.