Opinion
3:00-CV-2802-L.
February 23, 2001
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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the Eastham Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Lovelady, Texas. Respondent is Gary Johnson, Director of the TDCJ-ID. No process has been issued in this case.
Statement of the Case: Petitioner was convicted of murder following a jury trial. The trial court assessed punishment at ninety years in the TDCJ-ID on March 22, 1994. (Petition ¶¶ 1-4). Petitioner appealed. (Petition ¶ 8). The court of appeals affirmed his conviction in an unpublished opinion. Johnson v. State, No. 05-94-00739-CR (Tex.App.-Dallas, May 31, 1995). Petitioner did not file a petition for discretionary review. Instead he challenged his conviction in two applications for writ of habeas corpus filed on August 8, 1996, and October 15, 1999, respectively. The Texas Court of Criminal Appeals denied relief in both applications. (Petition ¶¶ 9-11).
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his murder conviction in this court. See Johnson v. Johnson, 3:97-CV-1603-P (N.D. Tex., Dallas Div.). On December 5, 1997, the district court adopted the findings, conclusions and recommendation of the magistrate judge and dismissed the petition as barred by the one-year statute of limitations. The United States Court of Appeals for the Fifth Circuit dismissed the appeal as frivolous on November 17, 1998.
In the present petition for a writ of habeas corpus, Petitioner seeks to challenge his murder conviction. He alleges actual innocence, insufficiency of the evidence, insufficient identification, and ineffective assistance of counsel. (Petition ¶ 20).
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, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (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 that Petitioner seeks to raise in this habeas action were available to him when he filed his initial federal petition and are, therefore, "second or successive" under the AEDPA. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file his present petition for habeas corpus relief, 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.
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 to Douglass 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.