Opinion
No. 3:03-CV-2607-H.
August 20, 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
In July 2003, petitioner, an inmate currently incarcerated in the Texas prison system, filed an Application for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, in the Amarillo Division of the Northern District of Texas. In the petition, he specifically indicates that his application "is not an attack on the validity of [his] criminal conviction or sentence." (Pet. at 2.) He "contends that there is clear and convincing evidence that a plain-error was committed on his ground of error number two on direct review, that affected his substantial rights to due process and fairness and integrity of the appellate proceeding that raises a claim of a denial of federally guaranteed right." ( Id.)
On October 22, 2003, the Amarillo Division transferred this action to this Court. ( See Order to Transfer.) It noted that "[p]etitioner has filed numerous habeas corpus petitions, the last of which was dismissed for the failure to obtain authorization from the United States Court of Appeals for the Fifth Circuit to file a successive 28 U.S.C. § 2254 petition." ( Id. at 1.) It also stated:
Despite petitioner's assertion that he is not attacking the validity of his conviction or sentence, a review of the instant application clearly reveals petitioner is, in fact, challenging his 1988 conviction, and the resultant 50-year sentence, for the felony offense of murder out of the Criminal District Court No. 3 in Dallas County, Texas.
( Id. at 2.) It further stated that "[n]o rulings have been made with regard to the successiveness or timeliness of petitioner's application for a writ of habeas corpus." ( Id. at 3.)
In response to the transfer of his case, petitioner reiterated that he "does not in any way seek to challenge the validity of his criminal conviction or sentence or the trial court handling of the proceedings." ( See Resp. to Order to Transfer at 4.)
II. NATURE OF ACTION
Despite petitioner's protestations to the contrary, the Court construes this action as arising under 28 U.S.C. § 2254, rather than § 2241. Prior to transferring this action, the Amarillo Division of this Court found that petitioner was in fact challenging his 1988 Dallas County conviction which resulted in a fifty-year sentence. Section 2254 specifically governs any challenge to that conviction. By attempting to proceed under § 2241 it appears that petitioner merely seeks to avoid § 2254's prohibition on filing successive petitions. However, a petitioner may not utilize § 2241 merely to avoid the various provisions specifically applicable to § 2254 actions.
Furthermore, § 2241(c) provides that "[t]he writ of habeas corpus shall not extend to a prisoner unless" one of five enumerated situations exist. Unless petitioner is "in custody in violation of the Constitution or laws or treaties of the United States," none of the five situations exist. Moreover, if petitioner is "in custody in violation of the Constitution or laws or treaties of the United States" as contemplated by § 2241(c)(3), he is also in custody such that he may proceed under 28 U.S.C. § 2254. Because "a more specific provision controls a more general provision", see Carmona v. Andrews, 357 F.3d 535, 538 (5th Cir. 2004), this action falls under the more specific provision of § 2254. Petitioner's only avenue for habeas relief is through 28 U.S.C. § 2254.
The five situations are:
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court of judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted . . . or
(5) It is necessary to bring him into court to testify or for trial.
III. PRIOR FEDERAL HABEAS PETITIONS
As suggested in the background section, the instant action does not commence on a clean slate. Petitioner has filed two previous federal petitions for writ of habeas corpus that relate to the conviction he seeks to challenge in this action. In 1992, the Court denied and dismissed his first federal petition. See Branch v. Johnson, No. 3:91-CV-1698-H (N.D. Tex.) (Judgment dated Sept. 23, 1992). On August 16, 2000, the Court denied his second federal petition because it was successive within the meaning of 28 U.S.C. § 2244. See Branch v. Johnson, No. 3:99-CV-1708-T (N.D. Tex.) (Judgment dated Aug. 16, 2000). In both of these prior petitions, petitioner challenged his March 1988 murder conviction in Cause No. F87-88629-J, which resulted in a fifty year sentence.
The Fifth Circuit denied petitioner's request for a certificate of appealability to appeal the denial of his second petition. See Branch v. Johnson, No. 00-11064, slip op. at 1-2 (5th Cir. Feb. 14, 2001). The Circuit stated: "Branch has filed one prior 28 U.S.C. § 2254 petition and has moved this court three times for authorization to file successive petitions. All of his requests have been denied. . . . Branch is cautioned that further frivolous filings concerning successive habeas corpus petitions or applications may result in the imposition of sanctions." Id.
Because petitioner has filed previous habeas petitions the Court must determine whether the instant petition is successive within the meaning of 28 U.S.C. § 2244(b).
IV. 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); accord 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 has filed two previous federal petitions to challenge his murder conviction in Cause No. F87-88629-J. Under Orozco-Ramirez, petitioner was required to present all available claims related to his murder conviction 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)).
In this instance, petitioner complains about an alleged error that occurred during the resolution of the appeal of his murder conviction. Such claim was available when he filed his first federal habeas petition in 1991. Because the instant action raises claims that petitioner could have raised in his earlier petition the federal petition filed in the instant action is successive within the meaning of 28 U.S.C. § 2244(b).
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. In fact, the Fifth Circuit has specifically denied petitioner such authorization.
Because the petition sought to be filed in this action is successive, and because the Fifth Circuit has denied petitioner authorization to file a successive petition, the Court should dismiss the instant action without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals.
V. SANCTIONS
The Fifth Circuit warned petitioner that he could be sanctioned for further frivolous filings concerning successive habeas corpus petitions or applications. See Branch v. Johnson, No. 00-11064, slip op. at 1-2 (5th Cir. Feb. 14, 2001). The federal courts possess the inherent power "to protect the efficient and orderly administration of justice and . . . to command respect for the court's orders, judgments, procedures, and authority." In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included in such inherent power is "the power to levy sanctions in response to abusive litigation practices." Id. Sanctions may be appropriate when a pro se litigant has a history of submitting multiple frivolous claims. See Fed.R.Civ.P. 11; Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993). Pro se litigants have "no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
This is the third time petitioner has tried to collaterally attack his state conviction in this Court. He has also thrice unsuccessfully sought authorization from the Fifth Circuit to file a successive habeas petition. As earlier set forth, the Fifth Circuit has warned him that sanctions could be imposed should he continue to make frivolous filings concerning successive habeas petitions. See Branch v. Johnson, No. 00-11064, slip op. at 1-2 (5th Cir. Feb. 14, 2001). In view of this history, the Court deems it appropriate to further admonish or warn petitioner that sanctions may be imposed, if he files another habeas petition related to his conviction in Cause No. F87-88629-J without first obtaining authorization from the Fifth Circuit. Not only has petitioner ignored the prohibition against second or successive petitions under § 2244 without obtaining Fifth Circuit approval, he has attempted to circumvent such prohibition by bringing the present action under § 2241. Should he persist with his legal maneuvering, he should be monetarily sanctioned and barred from filing any additional habeas actions in federal court without first obtaining permission from the Court.
VI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge recommends that the Court DISMISS the instant action without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals. The Court should also WARN petitioner that, if he files another habeas petition related to his murder conviction in Cause No. F87-88629-J without first obtaining leave from the Fifth Circuit, he will be monetarily sanctioned and barred from filing any additional habeas actions in federal court without first obtaining permission from the Court.