Opinion
No. 3:03-CV-1316-L
January 21, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), implemented by an Order of the Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a state prisoner, currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division ("TDCJ-CID"). Respondent is Douglas Dretke, Director of the TDCJ-CID.
Statement of the Case: Petitioner is currently serving concurrent sentences for the offenses of burglary of a habitation and aggravated kidnapping. In this petition, Petitioner does not challenge either of his convictions. Petitioner instead argues that the 1987 amendments to the Texas parole statute, TEX. CODE CRIM. PRO. ANN. art. 42.18 (Vernon 1988), provided him with a protectible expectancy of release, thereby creating a liberty interest in his parole. Petitioner also the Texas Parole Board ("Board") violated his due process rights by denying him parole and the Board violated the Ex Post Facto Clause by applying newly amended statutes, policies, and regulations in its parole decision.
The Court now finds the petition is successive.
Discussion:
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217, there are limited circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. An application is second or successive when it: (1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the writ. United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
The Court finds Petitioner raised these claims in a previous federal petition for writ of habeas corpus. See Norton v. Cockrell, 3:01-CV-1172-D (N.D. Tex. filed June 19, 2001). That petition was denied on the merits. The petition is therefore successive within the meaning of 28 U.S.C. § 2244(b).
When a petition is second or successive, the petitioner must seek an order from the Fifth Circuit authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). The Fifth Circuit may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of 2244(b). To present a claim in a second or successive application, the petitioner must show the application is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. § 2244(b)(2). Before Petitioner files his application in this Court, a three-judge panel of the Fifth Circuit must determine whether the application makes the requisite prima facie showing. See 28 U.S.C. § 2244(b)(3)(A) and (B).
The Fifth Circuit has not issued an order authorizing the district court to consider this successive application for habeas relief. Petitioner must obtain such an order before this case is filed.
RECOMMENDATION:
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the petition be dismissed as successive pursuant to 28 U.S.C. § 2244(b).