Opinion
No. 3:04-CV-0764-G.
July 16, 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 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 Ramsey Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Rosharon, 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 265th District Court, in cause number F89-86764-KR. (Petition at 1). On June 15, 1990, punishment was assessed at fifteen years imprisonment. The Fifth District Court of Appeals affirmed Petitioner's conviction on March 5, 1992. King v. State, No. 05-90-01009-CR (Tex.App.-Dallas, March 5, 1992). Petitioner filed a petition for discretionary review (PDR) which was refused on June 24, 1992. Ex parte Gerald King, No. PD-0558-92, www.cca.courts. state.tx.us/opinions/Case.asp?FilingID=133614 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
On May 28, 1991, the 265 District Court convicted Petitioner for a second murder and an aggravated assault stemming from events related to the murder conviction in this case. See State v. King, Nos. F90-02379-WR and F90-02380-WR. Punishment was assessed at twenty years confinement for the second murder conviction and a ten-year suspended sentence for the aggravated assault conviction. Both convictions were affirmed on direct appeal, see King v. State, Nos. 05-91-00664-CR and 05-91-00665-CR (Tex.App.-Dallas June 16, 1992), and PDR was refused on October 21, 1992, see Ex parte Gerald King, Nos. PD-1093-92 and PD-1094-92, www.cca.courts.state.tx.us/opinions/Case.asp?Filing ID-134151 and 134152 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
Petitioner has filed two state habeas applications pursuant to art. 11.07, Texas Code of Criminal Procedure, challenging his first murder conviction. Both applications were denied without written order, the first one on July 28, 1999, and the second one on April 9, 2003. Ex parte Gerald King, Nos. WR-42,124-01 and WR-42,124-02, www.cca.courts.state.tx.us/opinions/Case.asp? FilingID=190673 and 190828 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his two murder convictions and aggravated assault conviction. See King v. Johnson, 3:99-CV-1937-L (N.D. Tex., Dallas Div.). Of the five claims raised, only the first claim (which related to counsel's conduct in filing a PDR and failing to advise Petitioner of his right to file the same) challenged the first murder conviction at issue in this case. That claim was subsequently dismissed as time barred along with two of the other claims (i.e., that he was denied a proper parole hearing and denied release on parole, and that he was forced to work in prison without compensation). See May 25, 2000 Order Adopting Findings and Conclusions of the Magistrate Judge. The remaining two claims (relating to defects during the habeas proceeding and to a request for immediate release) were dismissed on the merits. Id. Petitioner appealed. The Fifth Circuit dismissed the appeal for lack of jurisdiction. See King v. Johnson, No. 00-10764 (5th Cir. Aug. 9, 2000).
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his first murder conviction. He asserts eighteen grounds for habeas relief. In addition to nine grounds alleging ineffective assistance of trial and appellate counsel, he alleges the following claims: that he is actually innocent, that his equal protection and due process rights were violated because of discrimination on peremptory strikes, that he received ineffective assistance of counsel at trial, that the trial court and prosecutor violated his presumption of innocence, that the state failed to prove the requisite elements to prove guilt beyond a reasonable doubt, that the state presented insufficient evidence, that he was denied the right to a defensive instruction, and that his due process and equal protection rights were violated during state post-conviction proceedings. 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)."
This action was initially assigned and referred to Magistrate Judge Jeff Kaplan, who subsequently recused himself on May 24, 2004. Prior to his recusal, Magistrate Judge Kaplan ordered Petitioner to explain why this case is not barred by the one year limitation period. Petitioner filed a response and a supplemental response on May 18, 2004, and June 4, 2004. As more fully set out below, the District Court lacks jurisdiction over the petition. As a result, the magistrate judge need not address the application of the limitation period in this case.
The facts underlying the claims at issue in this petition occurred before Petitioner filed his initial federal habeas petition in 1999. These claims were, thus, available to him 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 in part 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 Gerald King, #589458, TDCJ, Ramsey Unit, 1100 FM 655, Rosharon, Texas 77583.