Opinion
No. 3:14-CV-0714-L (BH)
03-18-2014
TRACY HICKS, ID # 673001, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Referred to U.S. Magistrate Judge
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Pursuant to Special Order 3-251, this case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant filings and applicable law, this case should be transferred to the Fifth Circuit as a successive petition.
I. BACKGROUND
Tracy Hicks (Petitioner), an inmate currently incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ-CID), filed his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 to challenge his Johnson County conviction for sexual assault. (See Petition (Pet.) at 2; see also www.tdcj.state.tx.us , search for petitioner). The respondent is William Stephens, Director of TDCJ-CID.
After pleading guilty, Petitioner was convicted of three counts of sexual assault in Cause No. 29450 in the 18th Judicial District Court of Johnson County, Texas, and on August 19, 1993, was sentenced to 40 years' imprisonment for each count. (Pet. at 2-3; see also www.tdcj.state.tx.us, search for petitioner). He did not file a direct appeal. Petitioner has filed numerous state writs challenging this conviction. His first set of state writs were denied on their merits by the Texas Court of Criminal Appeals. See Ex parte Hicks, WR-17,290-04, WR-17,290-05, WR-17,290-06 (Tex. Crim. App. Nov. 16, 1994). His remaining state writs have been dismissed as abuses of the writ. See Ex parte Hicks, WR-17,290-07 (Tex. Crim. App. Dec. 14, 1994); Ex parte Hicks, WR-17,290-08 (Tex. Crim. App. Oct. 1, 1997); Ex parte Hicks, WR-17,290-09 (Tex. Crim. App. Dec. 18, 1997); Ex parte Hicks, WR-17,290-10 (Tex. Crim. App. April 8, 1998); Ex parte Hicks, WR-17,290-11 (Tex. Crim. App. June 3, 1998); Ex parte Hicks, WR-17,290-12 (Tex. Crim. App. May 26, 1999); Ex parte Hicks, WR-17,290-13 (Tex. Crim. App. Jan. 23, 2013).
Petitioner's first federal petition challenging this conviction was denied on its merits. Hicks v. Scott, No. 3:95-CV-1551-R (N.D. Tex. May 22, 1996). His second federal petition was dismissed as a successive habeas petition. Hicks v. Johnson, No. 4:98-CV-737-A (N.D. Tex. Sept. 10, 1998).
II. JURISDICTION
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). They have "a continuing obligation to examine the basis for jurisdiction." See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).
A district court cannot exercise jurisdiction over a second or successive § 2254 petition without authorization from the court of appeals. See 28 U.S.C. § 2244(b); Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). A petition is successive if it raises a claim that was or could have been raised in an earlier petition or otherwise constitutes an abuse of the writ. Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008); Crone, 324 F.3d at 836-37. If it essentially represents a second attack on the same conviction raised in the earlier petition, a petition is successive. Hardemon, 516 F.3d at 275-76 (distinguishing Crone because "Crone involved multiple § 2254 petitions attacking a single judgment"). A second petition is not successive if the prior petition was dismissed due to prematurity or for lack of exhaustion, however. See Slack v. McDaniel, 529U.S. 473, 487 (2000) (declining to construe an application as second or successive when it followed a previous dismissal due to a failure to exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998) (declining to construe an application as second or successive when it followed a previous dismissal due to prematurity, and noting the similarities of such dismissal to one based upon a failure to exhaust state remedies). Otherwise, "dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Stewart, 523 U.S. at 645.
Although Crone involved a challenge to petitioner's holding judgment of conviction followed by a challenge to postconviction and post-sentence administrative actions that stripped him of good-time credits, Hardemon considered both challenges to be against "the same conviction".
Here, Petitioner challenges the same conviction he challenged in a previous federal petition that was denied on its merits. Under Hardemon and Crone, he was required to present all available claims in that federal petition. A claim is available when it "could have been raised had the petitioner exercised due diligence." Leonard v. Dretke, No. 3:02-CV-0578-H, 2004 WL 741286, at *3 (N.D. Tex. Apr. 5, 2004) (recommendation of Mag. J.), adopted by 2004 WL 884578 (N.D. Tex. Apr. 20, 2004). The crucial question in determining availability is whether Petitioner knew or should have known through the exercise of due diligence the facts necessary to his current claims when he filed his prior federal petition challenging the same conviction challenged in this case. Petitioner's federal petition is successive because it raises claims that were or could have been raised in his prior federal 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). Petitioner contends both that his petition is based on newly discovered evidence that demonstrates that he is actually innocent of a predicate violation upon which his sentence was based and that he is relying on a new rule. (Pet. at 6, Mem. at 2). However, a three-judge panel of the Fifth Circuit Court of Appeals must determine whether the application makes the requisite prima facie showing. See § 2244(b)(3)(A) and (B).
Because the Fifth Circuit has not authorized consideration of this successive application for habeas relief, this Court lacks jurisdiction over this action.
III. RECOMMENDATION
The petition for writ of habeas corpus filed under 28 U.S.C. § 2254 should 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).
___________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
___________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE