Opinion
No. 3-04-CV-1411-G.
July 9, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner David Jeffrey Royale, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed without prejudice pending review by a three-judge panel of the court of appeals.
I.
Petitioner was placed on 10 years deferred adjudication probation following his plea of guilty to aggravated robbery. Thereafter, petitioner was charged with a probation violation. The trial court revoked his probation, found petitioner guilty of the underlying offense, and sentenced him to 40 years confinement. Petitioner appealed his conviction and sentence. The appeal was dismissed for want of jurisdiction. Royale v. State, No. 05-98-00066-CR (Tex.App.-Dallas, Feb. 8, 2000, no pet.). Petitioner also challenged his conviction on collateral review in state and federal court. Both his state and federal writs were denied on the merits. Ex parte Royale, No. 46,236-02 (Tex. Crim. App. May 16, 2001); Royale v. Cockrell, No. 3-01-CV-1063-H (N.D. Tex. Apr. 26, 2002), COA denied, No. 02-10592 (5th Cir. Nov. 14, 2002).
Petitioner filed a prior federal writ that was dismissed without prejudice for failure to exhaust state remedies. Royale v. Johnson, No. 3-00-CV-2213-M (N.D. Tex. Mar. 7, 2001).
Petitioner now seeks federal habeas relief for a second time. In his sole ground for relief, petitioner contends that the trial court lacked jurisdiction to sentence him to probation for aggravated robbery. Before addressing this claim, the court must determine whether petitioner can file a successive habeas petition without prior approval from the court of appeals.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the circumstances under which a state prisoner may file a successive application for federal habeas relief. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). A petitioner must show that the successive 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 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. 28 U.S.C. § 2244(b)(2). This determination must be made by a three-judge panel of the court of appeals before petitioner files his application in district court. Id. § 2244.
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.