Opinion
No. 4:02-CV-1027-Y
January 7, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER (With special instructions to the clerk of Court)
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This action seeks relief consistent with a petition brought pursuant to 28 U.S.C. § 2254 by a state prisoner.
B. PARTIES
Bruce David Conley, Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) No. 770741 is currently confined in the TDCJ-ID Allred Unit in Iowa Park, Texas. Because Conley is incarcerated under the authority of TDCJ-ID, and this action purports to challenge the state court judgment under which he is confined, TDCJ-ID director Janie Cockrell is the respondent. No process has been issued to Respondent in this case.
C. LEGAL ANALYSIS
On December 17, 2002, prisoner Bruce David Conley presented a document entitled "Petition for Relief from Judgment Pursuant to Rule 60, Fed.R.Civ.Proc.," by which Conley purportedly seeks relief under Federal Rule of Civil Procedure 60, and the clerk of Court was directed to open the case as a petition under 28 U.S.C. § 2254. By this action, Conley contends that he has newly discovered evidence that he is actually innocent of the conviction assessed against him in the 213th District Court of Tarrant County, Texas for the offense of Engaging in Criminal Activities, burglary-cause number 0637499D. A review of the records of this the Fort Worth division of the Northern District of Texas indicates that Conley filed a prior action under 28 U.S.C. § 2254 challenging his imprisonment resulting from that same conviction: Conley v. Johnson, 4:99-CV-765-C. Although Conley acknowledges the previous federal action, the instant filing does not seek relief from the judgment entered in that case. Rather, Conley attempts to rely upon Rule 60(b) to now again challenge his state conviction in cause number 0637499D on the ground that he has obtained newly discovered evidence that reveals misconduct by prosecutors, and on the ground of the ineffectiveness of counsel. (Petition at page 5.)
After review and consideration of Conley's proposed December 17th filing, the undersigned finds that it should be construed as a petition for writ of habeas corpus. Where a party seeks relief in federal court from the fact or duration of confinement, the claim is cognizable only as an action for a petition for writ of habeas corpus. Here, Conley expressly seeks to be released from confinement, and raises new grounds to challenge his underlying state conviction; he does not challenge the ruling of the district court in case number 4:99-CV-765-C. Thus, Conley's December 17 petition for relief under Federal Rule of Civil Procedure 60 must be construed as a petition for writ of habeas corpus under 28 U.S.C. § 2254.
See generally Graham v. Broglin, 922 F.2d 379, 382 (7th Cir. 1991) (if prisoner files a petition for habeas corpus when he should have brought a civil rights suit, "all he has done is mislabel his suit, and he should be given leave to plead over or the mislabeling should simply be ignored."); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (construing civil rights complaint as a Bivens action and § 2241 petition).
See Preiser v. Rodriguez, 412. U.S. 475, 499 n. 14 (1973).
See generally Abdur' Rahman v. Bell, 123 S.Ct. 594, 597-98 (2002) (Stevens, J., dissenting from dismissal of cert.) (arguing that a distinction remains between a 60(b) motion challenging a judgment and a second or successive habeas corpus application).
See Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir.) ("a motion under Rule 60(b) is the equivalent of a second or successive habeas petition subject to the standards of section 2244(b)"), cert. den'd, stay den'd, 123 S.Ct. 14 (2002); see also Fiero v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999) ("[o]ur own court and other circuit courts have decided that Rule 60(b) motions should be construed as successive habeas petitions governed by the AEDPA's provisions"), cert. den'd, 530 U.S. 1206 (2000), quoting United States v. Rich, 141 F.3d 550, 551-52 (5th Cir. 1998), cert. den'd, 526 U.S. 1011 (1999).
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. The Court of Appeals for the Fifth Circuit recognized the district courts authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. From the face of the petition, and from court records of which this Court can take judicial notice, it appears that this is a successive petition filed without the permission of the Court of Appeals as required by 28 U.S.C. § 2244(b)(1) and (2).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.
28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 Cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added)
Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999)
Petitioner Conley challenges his conviction in state cause number 0637499D in the 213th Judicial District Court of Tarrant County, Texas. As noted above, Conley previously challenged this same conviction in Conley v. Johnson, cause number 4:99-CV-765-C. That petition under 28 U.S.C. § 2254 was denied in a judgment filed on April 10, 2001, and Conley's request for a certificate of appealability was denied by the court of appeals in an order entered in the district court's docket on October 31, 2001.
The Court takes judicial notice of the records of this the Fort Worth division in Conley v. Johnson, No. 4:99-CV-765-C.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a second or successive petition filed by a person attacking a sentence under § 2254 must be authorized by a three judge panel of the appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A) and (B). These provisions require dismissal of a second or successive habeas corpus proceeding unless specified conditions are met. The Supreme Court observed that this new law "simply transfers 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)." Since Conley's present petition was filed after the effective date of the AEDPA, this Court is without jurisdiction to consider the petition unless leave to file the same is granted by the Fifth Circuit. Petitioner Conley has not obtained an order from the Fifth Circuit authorizing the district court to review his second petition for habeas corpus relief. As a result, it appears that Conley's petition under 28 U.S.C. § 2254 should be dismissed without prejudice to his right to file a motion in the United States Court of Appeals for the Fifth Circuit for leave to file a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).
See 28 U.S.C.A. §§ 2244(b)(2) and (b)(3) (West Supp. 2002).
Felker v. Turpin, 518 U.S. 651, 664 (1996).
RECOMMENDATION
It is therefore RECOMMENDED that Bruce David Conley's December 17, 2002 petition seeking relief under Federal Rule of Civil Procedure 60 be construed as a petition for habeas corpus relief under 28 U.S.C. § 2254. It is further RECOMMENDED that Bruce David Conley's Petition For Writ of Habeas Corpus under 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE to his right to file a motion in the United States Court of Appeals for the Fifth Circuit for leave to file a successive petition.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until January 28, 2003. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until January 28, 2003 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and is hereby, returned to the docket of the United States District Judge.