Opinion
No. 3:05-CV-0541-L.
August 5, 2005
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:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History: Petitioner was convicted of robbery in August 1995, in Cause No. F95-02478-RN(D). (Pet. Writ of Habeas Corpus (Pet.) at 2.) In 1995, he previously challenged that conviction. See Jordan v. State of Tex. Crim. J. Sys., No. 3:95-CV-2457-T (N.D. Tex. filed Oct. 18, 1995). To the extent that action sounded in habeas, the Court dismissed it without prejudice for petitioner's failure to exhaust state remedies. Id. (order and judgment dated Oct. 20, 1997). In 2002, petitioner filed another prior federal action to challenge that conviction. See Jordan v. Johnson, No. 9:02cv113 (E.D. Tex. filed May 1, 2002). The Eastern District of Texas denied that challenge because petitioner had not timely filed a federal petition for writ of habeas corpus. See id. (order of dismissal).
Although petitioner challenged a Dallas County conviction, the Eastern District of Texas had jurisdiction over the habeas action by virtue of petitioner's incarceration in that district. See 28 U.S.C. § 2241(d).
In February 2005, petitioner commenced the instant action to challenge his robbery conviction on the grounds that he is actually innocent of the crime for which he was convicted; he is actually innocent of the imposed forty-year sentence; and the State improperly struck an African-American juror. (Pet. at 7, 9.) The petitioner concedes that he previously filed two federal actions attacking the same conviction at issue in this action. ( See Pet. ¶¶ 11, 21.) He further concedes that one prior action was dismissed without prejudice and one was dismissed as untimely. ( Id. ¶ 21.)
In view of the two prior habeas dismissals, the Court must determine whether the current petition is a second or successive application within the meaning of 28 U.S.C. § 2244(b).
II. SECOND OR SUCCESSIVE APPLICATION
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA) limits the circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. In general, "a later petition is 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." Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir.), cert. denied, 540 U.S. 910 (2003); accord United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). A petition that is literally second or successive, however, is not necessarily a second or successive application for purposes of the AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). In Stewart, the Supreme Court declined to construe an application as second or successive when it followed a previous dismissal due to prematurity or lack of exhaustion. Id. "To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Id. at 645.
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 at 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.
In this case, petitioner's previous challenge in the Eastern District of Texas was not dismissed because of any prematurity or lack of exhaustion. Under Orozco-Ramirez and Crone petitioner therefore was required to present all available claims in that habeas action:
"The requirement that all available claims be presented in a prisoner's first habeas petition is consistent not only with the spirit of AEDPA's restrictions on second and successive habeas petitions, but also with the preexisting abuse of the writ principle. The requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for a unitary presentation to the district court."211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (1st Cir. 1997)).
The instant federal petition is successive within the meaning of 28 U.S.C. § 2244(b) because it raises claims that were or could have been raised in his previous challenge to the same conviction. When he filed his previous challenge he would have known the facts underlying the claims raised in the instant petition. There is no reason petitioner could not have raised the instant claims in his previous challenge to his robbery conviction.
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). 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.
Although it is appropriate for the Court to dismiss the successive § 2254 petition without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals, it is also appropriate in some circumstances to transfer the successive petition to the Fifth Circuit for a determination of whether petitioner should be allowed to file the successive motion in the district court. See Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002); In re Epps, 127 F.3d 364, 365 (5th Cir. 1997) (approving the practice of transferring a successive petition to the Circuit and establishing procedures in the Circuit to handle such transfers). In this instance, a dismissal without prejudice appears more efficient and better serves the interests of justice than a transfer. By filing this petition to challenge a 1995 conviction based upon claims known long ago, petitioner has abused the judicial process.
Consistent with the Eastern District dismissal, the Court notes that the instant petition appears to be untimely under the applicable statute of limitations. Were the instant petition not successive, the Court would likely find it barred by the statute of limitations and the petition would be subject to dismissal with prejudice. The Court may not, however, consider the timeliness of a successive petition without the requisite pre-approval of the Fifth Circuit Court of Appeals.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge recommends that the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED without prejudice pending review by a three-judge panel of the court of appeals.