Opinion
No. 3:01-CV-1758-R
April 15, 2002
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:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History : On January 28, 1983, petitioner was convicted of murder. ( Pet. for Writ of Habeas Corpus (Pet.) at 3.) He appealed the conviction. ( Id.) This is his third federal petition for writ of habeas corpus challenging the subject confinement. See Findings, Conclusions and Recommendation, No. 3:98-CV-2369-R, slip op. at 2 (N.D. Tex. Oct. 22, 1998) (stating that petition then before the Court was the second petition). The first petition was denied on its merits and the second was dismissed as successive. Id. at 2-3. It thus appears that the instant petition is a successive petition within the meaning of 28 U.S.C. § 2244(b).
Successive Petition : The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 limits the circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. An application "is `second or 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.'" United States v. Orozco-Ramirez , 211 F.3d 862, 867 (5th Cir. 2000). In this instance, the Court finds the present petition successive within the meaning of 28 U.S.C. § 2244(b). It contains claims that were or could have been raised in his earlier federal petitions.
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 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.
When a petition is second or successive, then 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.
II. Sanctions
The Court possesses 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). Prose 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). "Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees — indeed, are not entitled to sue and appeal, period. Abuses of process are not merely not to be subsidized; they are to be sanctioned." Free v. United States , 879 F.2d 1535, 1536 (7th Cir. 1989).
This is the third time petitioner has tried to collaterally attack his state conviction in a petition under 28 U.S.C. § 2254. The Court thus deems it appropriate to admonish or warn petitioner that sanctions may be imposed, if he files another petition attacking his state conviction without obtaining leave from the Fifth Circuit. Should he persist with his legal maneuvering, he should be barred from filing in federal court any additional petitions or other actions relating to his 1983 murder conviction without first obtaining leave of court.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition 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). The Magistrate Judge further recommends that petitioner be warned that he may be barred from filing in federal court any additional petitions or other actions relating to his 1983 murder conviction without first obtaining leave of court, if he files another petition attacking his state conviction without obtaining leave from the Fifth Circuit.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).