Opinion
3:04-CV-2020-D.
November 2, 2004
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 brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the Connally Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Kenedy, Texas. Respondent is the Director of TDCJ-CID. No process has been issued in this case.
Statement of the Case: Following his plea of not guilty, a jury found Petitioner guilty of injuring an elderly or disabled person in the 282nd District Court of Dallas County, Texas, in cause number F-9929421. (Petition at 1). Punishment was assessed at sixty years imprisonment. His conviction and sentence were affirmed on direct appeal. Willis v. State, No. 05-00-01378-CR (Tex.App.-Dallas Aug. 23, 2003, pet. ref'd).
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction in this case. See Willis v. Dretke, 3:03-CV-3069-R (N.D. Tex., Dallas Div.). On August 4, 2004, the District Court adopted the findings, conclusions and recommendation of the undersigned magistrate judge, and dismissed the petition (which raised only one ground for relief — namely that petitioner was denied a meaningful and adequate right to seek a petition for discretionary review) on the merits. Petitioner did not appeal.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his conviction in cause number F-9929421. He asserts three new grounds for habeas relief: (1) he alleges the evidence was legally and factually insufficient to support a finding of serious bodily injury; (2) the evidence was legally and factually insufficient to support a deadly weapon finding; (3) the court of appeals erred in deciding an important question of state or federal law in a way that conflicts with the applicable decisions of the court of criminal appeals and the United States Supreme Court. (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, 663-64 (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 which Petitioner seeks to raise in this habeas action were available to him when he filed his initial federal petition. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). They are, therefore, "second or successive" under the AEDPA. See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it "raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ.").
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file the present petition, 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.