Opinion
3:03-CV-0763-P
April 22, 2003
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 presently incarcerated at the Clements Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Amarillo, Texas. Respondent is the Director of TDCJ-TD. No process has been issued in this case.
Statement of the Case: Petitioner pled guilty to aggravated robbery in the 282nd District Court of Dallas County, Texas, Cause Nos. F89-95644 and F89-95643. Punishment was assessed at twenty years imprisonment in each case. Petitioner did not appeal.
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his convictions. See Johnson v. Johnson, 3:97-CV-0418-P (N.D. Tex., Dallas Div.). On July 7, 1997, the District Court adopted the findings, conclusions and recommendation of the Magistrate Judge and denied the petition on the merits. Alternatively, the court dismissed the habeas petition without prejudice for failure to exhaust state court remedies. See Attachment I (Magistrate Judge's Recommendation and Judgment). Petitioner did not appeal.
In his first federal habeas action, Petitioner challenged the denial of his right to appeal. (See Attachment I, Recommendation at 2-3). He also suggested in a conclusory fashion (1) his indictment was defective, (2) an inmate conspired with prison officials to withhold documents, (3) he was not allowed to challenge the array of the grand jury, (4) he received ineffective assistance of counsel, (5) he wanted his punishment assessed by a jury rather than by the court, (6) the case was tried in the wrong court, and (7) he was denied his right to a jury trial. Id.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his convictions for aggravated robbery. He alleges (1) his counsel rendered ineffective assistance (he failed to object to the indictment and failed to challenge the sufficiency of the evidence knowing that Petitioner was under medications); (2) Petitioner was denied the right to withdraw his guilty plea; and (3) the State withheld evidence. (Petition at p. 7).
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). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (the AEDPA governs petitions filed after its effective date of April 24, 1996). Section 2244(b)(3)(A) provides that a second or successive habeas petition filed 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)."
The claims which Petitioner seeks to raise in this habeas action were 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. Crone v. Cockrell, ___ F.3d. ___, 2003 WL 1204115, *4 (5th Cir. Apr. 1, 2003) (citing 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.")). Petitioner knew of all of the facts necessary to raise the claims at issue in the present petition when he filed his initial federal petition. Crone, 2003 WL 1204115, *4 Insofar as Petitioner argues that he should not have been required to raise his claims in his initial federal petition because they were unexhausted, his contention is meritless. The Fifth Circuit has "long held that under an abuse of the writ standard, `the sole fact that the new claims were unexhausted when the earlier federal writ was prosecuted will not excuse their omission.'" Id. (quoted cases omitted).
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). Accordingly, 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 District Court dismiss the habeas corpus petition 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.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.