Opinion
Civil Action No. 4-02-CV-0954-Y
March 17, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
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 are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner R. W. Rogers, Sr., TDCJ-ID #493394, is a state prisoner currently incarcerated in the Texas Department of Criminal Justice, Institutional Division, in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On September 22, 1988, Rogers was convicted in state court of aggravated sexual assault of a child younger than 14 years of age and sentenced to forty years' confinement. (Trial Tr. at 55.) Rogers sought postconviction relief challenging his conviction, including a previous federal petition for writ of habeas corpus. On June 6, 2001, after the passage of Senate Bill 3 by the Texas Legislature, now codified in Chapter 64 of the Texas Code of Criminal Procedure, Rogers filed a motion for DNA testing in the convicting court. (State Habeas R. at 2-34.) See TEX. CODE CRIM. PROC. ANN. arts. 64.01-64.05 (Vernon Supp. 2003). In answer to the motion, the state explained to the convicting court in writing, supported by the court reporter's affidavit, that the evidence could not be located, and, through no fault of its own, it could not deliver the evidence to the court. (State Habeas R. at 51-51, 57-58.) See id. at art. 64.02(2)(B). Thereafter, the convicting court denied the motion. (State Habeas R. at 73.)
This petition is Rogers's sixth petition for writ of habeas corpus challenging his conviction filed in the Northern District of Texas. The first two were dismissed without prejudice ( Rogers v. Collins, 4:90-CV-401-K, Rogers v. Collins, 4:91-CV-711-Y), the third was denied on the merits ( Rogers v. Collins, 4:93-CV-174-Y), the fourth was dismissed as an abuse of the writ ( Rogers v. Scott, 4:94-CV-711-Y), and the fifth was dismissed as successive under 28 U.S.C. § 2244(b) ( Rogers v. Johnson, 4:OO-CV-1873-A). The court takes judicial notice of the docket sheet records of these cases.
Rogers filed a state application for writ of habeas corpus raising the due process claims presented herein, which was denied by the Texas Court of Criminal Appeals without written order. Ex parte Rogers, No. 22, 282-07 (Tex.Crim.App. Sep. 2, 2002) (not designated for publication). Rogers filed the instant petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 1, 2002. Respondent has filed an Answer and supporting brief arguing that the petition should be dismissed because Rogers failed to first request and obtain permission from the Fifth Circuit to file this successive petition. Rogers has filed a reply.
D. ISSUES
The Petitioner raises the following claims:
1. He was denied due process to prove his innocence by way of DNA testing pursuant to Senate Bill 3 because the state lost or destroyed the key piece of evidence.
2. He was denied due process because of the court reporter's dereliction of duty in preserving the key piece of evidence.
3. The state trial court's decision to deny his motion for DNA testing involved an unreasonable misapplication of clearly established federal law and/or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. (Pet. at 7.)
E. RULE 5 STATEMENT
Cockrell has not addressed whether Rogers has exhausted his state remedies as to the issues presented in this habeas corpus petition, instead reserving the right to argue lack of exhaustion, as well as other defenses, in the event this petition is not dismissed for lack of jurisdiction.
F. SUCCESSIVE PETITION
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) requires dismissal of a second or successive petition filed by a state prisoner under § 2254 unless specified conditions are met. 28 U.S.C. § 2244(b)(1)-(2). Further, before such a petition is filed in federal district court, the petitioner must move for authorization to file the petition in the appropriate court of appeals. Id. § 2244(b)(3).
Section 2244(b) provides:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —
(A) the application shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(1)-(2).
Cockrell seeks dismissal of Rogers's petition on the grounds that the petition is successive and Rogers has not moved for an order authorizing this court to consider the petition in the Fifth Circuit Court of Appeals. (Resp't Answer at 4-6.) In reply, Rogers argues that his petition falls within the exception under § 2244(b)(2)(B) because Senate Bill 3 did not become effective until April 2001 and because he did not learn that the key piece of evidence" (the victim's underwear) was destroyed or lost until the state court proceedings on his motion for DNA testing.
Although Senate Bill 3 did not exist when Rogers filed his previous petition ( Rogers v. Johnson, 4:00-CV-1873-A), the instant petition is essentially an attack on his conviction and sentence on similar grounds raised in the previous petition. Thus, the petition is "functionally" a second or successive petition for habeas relief. See Kutzner v. Cockrell, 303 F.3d 333, 338-39 (5th Cir.), cert. denied, 123 S.Ct. 14 (2002). This Court is, therefore, without jurisdiction to consider the petition. Id.; United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). Even assuming, as Rogers argues, he can demonstrate a colorable new constitutional claim that would qualify as a ground for a successive petition under § 2244(b), he must first seek an order authorizing this court to consider the claim from the Fifth Circuit Court of Appeals. 28 U.S.C. § 2244(3).
Without commenting on the merits of Rogers's claims, it is noted that a defendant's right to postconviction DNA testing arises solely under Texas law, and the denial of a motion for DNA testing does not implicate a federal constitutional violation. See King v. Cockrell, 2002 WL 31906378, at *2 n. 3 (N.D. Tex. Dec. 27, 2002). Furthermore, Rogers mischaracterizes the evidence adduced at trial regarding the forensic testing conducted on the victim's underwear. He states that the expert witness's testimony regarding blood typing and secretor/nonsecretor status precludes him as the perpetrator because his blood does not possess the "Hantigen." However, having examined the reporter's record in full, the expert's testimony was that the "Hantigen" could have come from vaginal fluid of the victim and that Rogers could not be excluded as a donor of the semen found on the underwear. (7Rep. R. at 46-53; 9Rep. R. at 3-5.)
II. RECOMMENDATION
Rogers's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 should be dismissed without prejudice to his right to file a motion for leave to file a successive petition in the United States District Court of Appeals for the Fifth Circuit under 28 U.S.C. § 2244(b)(3)(A).
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 7, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 7, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.