Opinion
CIVIL ACTION NO. 00-3769, SECTION "N".
July 16, 2003.
ORDER AND REASONS
Petitioner has filed a Motion for Relief from Judgment and Order Denying 28 U.S.C. § 2254 Application and Certificate of Appealability Pursuant to Fed. Rules Civ. Proc. Rule 60(b).
"[A] motion under Rule 60(b) is the equivalent of a second or successive habeas petition subject to the standards of section 2244(b)." Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir.), cert. denied, 536 U.S. 978 (2002). Pursuant to 28 U.S.C. § 2244(b)(1), a claim presented in a second or successive habeas application under section 2254 "shall be dismissed" if it "was presented in a prior application." 28 U.S.C. § 2244(b)(1). A claim that was not presented in a prior application may proceed if it meets certain strict requirements, but only after the Court of Appeals has issued an order authorizing the district court to consider the application. See 28 U.S.C. § 2244(b)(3)(A).
It appears to this Court that petitioner's motion is purely an attempt to re-litigate the claims asserted in the application for habeas corpus relief that was dismissed by Judge Edith Fee Brown Clement on August 6, 2001. Thus, it is subject to dismissal pursuant to 28 U.S.C. § 2244(b)(1). Even if it does contain new claims, however, it is nevertheless subject to dismissal because petitioner has failed to show that he has obtained authorization from the Fifth Circuit Court of Appeals allowing this Court to consider the application. Accordingly,
IT IS ORDERED that petitioner's Motion for Relief from Judgment and Order Denying 28 U.S.C. § 2254 Application and Certificate of Appealability Pursuant to Fed. Rules Civ. Proc. Rule 60(b) is DENIED.