Opinion
3:04-CV-2630-B.
January 13, 2005
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 Ferguson Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Midway, 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, a jury found Petitioner guilty of murder in the 13th Judicial District Court of Navarro County, Texas, in cause number 25,450 (Petition (Pet.) at 1). On October 6, 1994, punishment was assessed at life imprisonment. The Tenth District Court of Appeals at Waco affirmed Petitioner's conviction.Sanchez v. State, No. 10-95-00022-CR (Tex.App.-Waco, March 13, 1996). The Texas Court of Criminal Appeals refused a petition for discretionary review on July 31, 1996. Sanchez v. State, P.D.R. No. 694-96 (Tex.Crim.App. 1996).
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his murder conviction on the ground of ineffective assistance of counsel. See Sanchez v. Johnson, 3:00-CV-0935-P (N.D. Tex., Dallas Div., filed May 3, 2000). On September 27, 2000, the District Court adopted the findings, conclusions and recommendation of the magistrate judge and dismissed the habeas petition with prejudice as barred by the statute of limitations. The Fifth Circuit thereafter denied Petitioner's request for a certificate of appealability. See Sanchez v. Johnson, No. 00-11203 (5th Cir. Jan. 31, 2001).
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his murder conviction. In ten grounds for habeas relief, containing multiple sub-issues, he alleges he was actually innocent of the murder conviction; the prosecutor failed to disclosedBrady material; his counsel rendered ineffective assistance at trial (raising eighty-three sub-issues along with multiple ineffective assistance claims raised in an art. 11.07 writ); the prosecutor and the trial court made improper comments to the jury; he was denied the constitutional right to a fair trial; the prosecutor and the trial court admitted perjured testimony during the jury trial; the prosecutor and Navarro County officials unreasonably applied state and federal law when they illegally contacted potential grand jurors by telephone; he was denied the substantive right to confrontation of all the state's witnesses because of an incompetent and unqualified interpreter; the appellate court's decision was erroneous; and the multiple deprivation of substantive rights warrant habeas relief. (See Appendix A attached to Pet.). 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 facts underlying the claims at issue in this petition occurred at or before Petitioner's trial or during the course of his appeal, and predated the filing of his initial federal habeas petition in 2000. These claims were, thus, available to Petitioner 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.").
Although the first § 2254 petition was dismissed as time barred, such a dismissal constituted an adjudication on the merits for purposes of the gate-keeping rules on second or successive petitions. See Villanueva v. United States, 346 F.3d 55, 61 (2nd Cir. 2003) (addressing issue in the context of a § 2255 motion); Donaldson v. United States, 2003 WL 22959502, No. 01-cv-1061 (N.D.N.Y. Oct. 27, 2003) (same); see also Anders v. Cockrell, 2003 WL 102615 at *2, 3:02cv2513-N (N.D. Tex. Jan. 08, 2003) (addressing issue in the context of a state habeas corpus petition).
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 Pedro Aviles Sanchez, #709974, Ferguson Unit, 12120 Savage Drive, Midway, Texas 75852.