Opinion
No. 3:03-CV-1838-M, (Consolidated with No. 3:03-CV-1839-M).
July 6, 2004
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : The Court has under consideration two petitions for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254. Because the petitions challenge related state convictions for the same offense and are materially the same, these two actions have been consolidated. Accordingly, the Court will generally cite and refer to the two federal petitions together.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : Petitioner was convicted of tampering with a motor vehicle in Cause Nos. F93-04641-VR and F93-04642-VR on January 7, 1994, and was sentenced to twenty years imprisonment on each conviction. ( See Pets. for Writ Habeas Corpus at 2 (Pets.).) In December 1997, he filed a petition challenging these convictions in federal court on the grounds that his convictions were obtained by (1) an illegal search and seizure, (2) selective and vindictive prosecution, (3) ineffective assistance of counsel, and (4) a trial court error with respect to enhancing his sentence with the offense of attempted murder. See Austin v. Johnson, No. 3:97-CV-3149-D (N.D. Tex.) (findings, conclusions, and recommendation). The Court denied the petition on August 30, 1999. Id. (Judgment). In August 2003, petitioner filed the instant petitions again challenging his convictions for tampering with a motor vehicle in Cause Nos. F93-04641-VR and F93-04642-VR. He now alleges that the indictments in those cases were defective, and that his sentences are illegal because the trial court improperly used a 1987 conviction to enhance his sentences. (Pets. at 7.)
Because petitioner has filed a previous federal petition, the Court must determine whether the instant petitions constitute a second or successive application within the meaning of 28 U.S.C. § 2244(b).
II. SECOND OR SUCCESSIVE APPLICATION
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA) limits the circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. In general, "a later petition is 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." Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 287 (2003); see also United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). A petition that is literally second or successive, however, is not necessarily a second or successive application for purposes of the AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). In Stewart, the Supreme Court declined to construe an application as second or successive when it followed a previous dismissal due to prematurity or lack of exhaustion. Id. "To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Id. at 645.
Although the Fifth Circuit Court of Appeals decided Orozco-Ramirez in the context of a motion to vacate under 28 U.S.C. § 2255, it also found it appropriate to rely upon cases decided under 28 U.S.C. § 2254 in reaching its decision. See 211 F.3d at 864 n. 4. In the present context, this Court also finds it appropriate to make no distinction between cases decided under § 2255 and those under § 2254.
In this case, petitioner's previous petition was not dismissed because of any prematurity or lack of exhaustion. Under Orozco-Ramirez and Crone petitioner therefore was required to present all available claims in his first federal petition:
"The requirement that all available claims be presented in a prisoner's first habeas petition is consistent not only with the spirit of AEDPA's restrictions on second and successive habeas petitions, but also with the preexisting abuse of the writ principle. The requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for a unitary presentation to the district court."211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (1st Cir. 1997)).
The instant federal petitions are successive within the meaning of 28 U.S.C. § 2244(b) because they raise claims that could have been raised in his previous petition. When he filed his previous petition he would have known the facts underlying the claims raised in the instant petitions. There is no reason petitioner could not have raised the instant claims in that petition.
When a petition is second or successive, the petitioner must seek an order from the Fifth Circuit Court of Appeals that authorizes 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)]." Id. § 2244(b)(3)(C). To present a claim in a second or successive application that was not presented in a prior application, the application must show that it 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 factfinder 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, that was previously unavailable. Id. § 2244(b)(2). Before petitioner files his application in this Court, a three-judge panel of the Fifth Circuit Court of Appeals must determine whether the application makes the requisite prima facie showing. See id. § 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.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the two consolidated petitions for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).