Opinion
3:90-CV-0782-D
September 13, 2002
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 of Case: Petitioner has filed a Second Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b).
Parties: Petitioner is a state prisoner, currently incarcerated in the Texas Department of Criminal Justice — Institutional Division ("TDCJ-ID"). Respondent is Janie Cockrell, Director of TDCJ-ID.
Statement of the Case: In February, 1986, Petitioner was convicted and sentenced to two concurrent life sentences for aggravated robbery in Criminal District Court No. 2 of Dallas County, Texas, in cause numbers F-85-83510-LI and F-85-83589-LI. On March 30, 1990, Petitioner filed a federal petition for writ of habeas corpus. McNeely v. Lynaugh, No. 3:90-0782-D. On October 2, 1991, the District Court granted Petitioner relief and ordered the state to provide Petitioner with a new punishment hearing. On July 6, 1992, the Fifth Circuit reversed and vacated the District Court's ruling.
On September 19, 2001, Petitioner filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Petitioner argued he had new evidence that the judge who presided over his trial lacked authority to act as a judge because he failed to make certain filings before taking the oral oath of office. Petitioner argued this rendered his convictions void. On January 11, 2002, the United States Magistrate Judge found the petition to be successive under 28 U.S.C. § 2244(b)(3)(A), and recommended dismissal of the petition. On January 25, 2002, the District Court adopted the Magistrate Judge's recommendation and entered judgment dismissing the petition without prejudice to Petitioner's right to seek permission from the Fifth Circuit Court of Appeals to file a successive petition. On June 20, 2002, the Fifth Circuit Court of Appeals denied Petitioner's motion for certificate of appealability.
On June 19, 2002, Petitioner filed the instant second motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). Petitioner argues that Respondent's attorney, Victoria Benitez, was not authorized to act as an assistant attorney general because she failed to file an anti-bribery statement prior to taking her oral oath of office. Petitioner also argues that Respondent's second attorney, Erich Dryden, was substituted for attorney Benitez because he knew she could not lawfully act as Respondent's attorney. Petitioner argues that both Benitez and Dryden have committed fraud on the court entitling him to habeas relief. Finally, Petitioner states that it is "a high probability" that attorney Dryden also has failed to file an anti-bribery statement, rendering him incapable of acting as Respondent's attorney. (Motion, p. 8).
Discussion:
Although Petitioner filed this petition as a second motion for relief from judgment under Fed.R.Civ.P. 60(b), his motion is properly construed as a successive petition for habeas corpus. As the Fifth Circuit has stated, a motion raising new claims after entry of final judgment is properly viewed as a successive federal petition. Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir. 1996); Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999). In this case, Petitioner's first motion for habeas relief was denied by the Fifth Circuit. Over eight years after that denial, Petitioner filed a motion for relief from judgment. That motion was denied by the district court on January 25, 2002, and the Fifth Circuit denied a certificate of appealability on June 20, 2002. Petitioner's current second motion for relief from judgment raises the new claims that the Respondent's attorneys committed fraud on the court. The petition is therefore properly viewed as a successive habeas petition. Behringer, 75 F.3d at 190.
When a petition is second or successive, then 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). See 28 U.S.C. § 2244(b)(3)(C). 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 Court recommends that the petition be dismissed without prejudice to Petitioner's right to seek permission to file a successive petition from the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § (b)(3)(A).