Wilson v. Cain

Full title: JERROD A. WILSON v. BURL CAIN, WARDEN

Court: United States District Court, W.D. Louisiana, Lake Charles Division

Date published: Aug 31, 2006

CIVIL ACTION NO. 06-0563-LC, SECTION "P" (W.D. La. Aug. 31, 2006)

Opinion

CIVIL ACTION NO. 06-0563-LC, SECTION "P".

August 31, 2006

ORDER

JAMES TRIMBLE JR., District Judge

Before the court is a petition for writ of habeas corpus ( 28 U.S.C. § 2254)¹ filed on March 27, 2006, by pro se petitioner, Jerrod A. Wilson. Petitioner is an inmate in the custody of the Louisiana Department of Corrections; he is incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. He challenges his 1997 simple burglary conviction in Louisiana's Thirty-First Judicial District Court.

1 Petitioner's original pleadings were entitled "Petition for Delayed or Successive Motions" and "Application to Vacate Set Aside or Correct the Sentence." [doc. 1-1] On May 2, 2006 he filed an "Application for Amended and Supplemental Pleadings" wherein he advised that his original pleadings were inadvertently filed pursuant to 28 U.S.C. § 2255. He asked the court to construe the pleadings as petitions for habeas corpus filed pursuant to 28 U.S.C. § 2241. Nevertheless, petitioner is in custody pursuant to the judgment of a State court and therefore his habeas corpus arises under 28 U.S.C. § 2254. See Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 2339, 135 L.Ed.2d 827 (1996) ("Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to `a person in custody pursuant to the judgment of a State court.'")

Petitioner filed a previous petition for federal habeas corpus relief in this court on April 24, 2003. [See Jerrod A. Wilson v. Warden, L.S.P., No. 2:03-cv-00739, United States District Court, Western District of Louisiana, hereinafter " Wilson I."] That petition was a collateral attack on the 1997 burglary conviction. On July 14, 2003, Magistrate Judge Wilson authored a Report recommending dismissal of the petition as barred by the timeliness provisions of 28 U.S.C. § 2244(d). [Wilson I at doc. 20] On August 27, 2003, the undersigned accepted the recommendation and ordered dismissal. [ Wilson I at doc. 33] Petitioner's subsequent appeal to the United States Fifth Circuit Court of Appeals was dismissed for want of prosecution. [ Wilson I at doc. 39]

Thereafter, on August 13, 2004, petitioner filed a second petition for writ of habeas corpus in this court. That petition also attacked the 1997 burglary conviction in the Thirty-First Judicial District Court. See Jerrod A. Wilson v. Burl Cain, Warden, No. 2:04-cv-1709 (United States District Court, Western District of Louisiana), hereinafter " Wilson II."] On February 22, 2005 Magistrate Judge Wilson authored a Report finding the petition to be second and successive and recommending its transfer to the United States Fifth Circuit Court of Appeals. Wilson II at doc. 21. On April 5, 2005, Judge Minaldi signed ajudgment adopting the recommendation. In due course the second and successive habeas corpus petition was transferred to the Fifth Circuit Court of Appeals. [Wilson II at doc. 25] On July 25, 2005 the Fifth Circuit denied petitioner authorization to file a successive § 2254 habeas petition. [See In Re: JerrodA. Wilson, No. 05-30355 (5^th Cir. 7/22/2005), Wilson II at doc. 28]

The petition currently before the court is Wilson's third attempt to collaterally attack his 1997 Louisiana conviction in the United States Court. It is, of course, a successive petition as defined by 28 U.S.C. § 2244 and the jurisprudence. "It is clear that an application filed after a previous application was fully adjudicated on the merits is a second or successive application within the meaning of 28 U.S.C. § 2244(b), even if it contains claims never before raised." Graham v. Johnson, 168 F.3d 762, 774 fn. 7 (5^th Cir. 1999) citing Felker v. Turpin, 518 U.S. 651, 655-58, 662-63, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

As petitioner must now be aware, before this or any successive habeas corpus petition may be considered by this court, petitioner is required to obtain authorization from the United States Fifth Circuit Court of Appeals. This procedure is mandated by 28 U.S.C. § 2244(b)(3) which provides in part, "[b]efore a second or successive application permitted by this section [§ 2254] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Petitioner has not received such authorization. Until such time as petitioner obtains authorization, the district court is without jurisdiction to proceed.

Accordingly,

IT IS ORDERED that petitioner's second and successive Application for Writ of Habeas Corpus be DISMISSED.