Opinion
NO. 3-02-CV-2020-L
October 2, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner, a state inmate, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
III. PROCEDURAL HISTORY
On June 10, 1974, Petitioner was found guilty of burglary of a habitation in the 195th Judicial District Court of Dallas County and was sentenced to life imprisonment. His conviction was affirmed on appeal. Petitioner was subsequently released on parole. On August 12, 1994, his parole was revoked.
Petitioner has filed three state applications for writ of habeas corpus. The Texas Court of Criminal Appeals denied all three applications. On September 17, 2002, Petitioner filed this petition for writ of habeas corpus. In his single ground for relief, Petitioner argues that the trial court used a void conviction to enhance his sentence. The Court finds the petition is successive and should be transferred to the Fifth Circuit Court of Appeals.
IV. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217, there are limited 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 2001, Petitioner filed a § 2254 petition for writ of habeas corpus arguing that his conviction was unlawful because his conviction "was changed from one legislature to another", thereby altering the rules that govern his release. The District Court denied relief. Mitchell v. Johnson, No. 3:01-CV-0417-H (N.D. Tex. May 31, 2001).
In this case, Petitioner argues that a void conviction was used to enhance his sentence. The Court finds Petitioner's current petition contains claims that could have been raised in his first federal petition and therefore the petition is successive within the meaning of 28 U.S.C. § 2244(b).
When a petition is second or successive, then the petitioner must seek an order from the Fifth Circuit authorizing 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). 28 U.S.C. § 2244(b)(3)(C). To present a claim in a second or successive application, the petitioner must show the application 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 fact finder 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. 28 U.S.C. § 2244(b)(2). Before Petitioner files his application in this Court, a three-judge panel of the Fifth Circuit must determine whether the application makes the requisite prima facie showing. See 28 U.S.C. § 2244(b)(3)(A) (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.
RECOMMENDATION:
The petition for writ of habeas corpus should be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendations on the parties. 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. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from obtaining a de novo determination by the District Court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) 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 or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).