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Harris v. Stephens

United States District Court, Fifth Circuit

December 10, 2013

FELIX JEROME HARRIS, (TDCJ-CID #338572) Petitioner,
v.
WILLIAM STEPHENS, Respondent.

MEMORANDUM AND OPINION

VANESSA D. GILMORE, District Judge.

Petitioner, Felix Jerome Harris, seeks habeas corpus relief under 28 U.S.C. § 2254. The threshold issue is whether this petition is subject to dismissal as successive. For the reasons discussed below, the court finds that this petition should be dismissed for lack of jurisdiction.

I. Background

Harris challenges a conviction for aggravated rape in the 262nd Judicial District Court of Harris County, Texas. (Cause Number 352626). On July 9, 2010, Harris filed a federal petition for a writ of habeas corpus, Civil Action Number H-1O-2874, collaterally attacking his conviction for aggravated rape. On October 27, 2010, this court dismissed Harris's claims as barred by limitations.

In the instant federal petition filed on November 22, 2013, Harris challenges the same conviction for aggravated rape. (Docket Entry No.1, Petition for a Writ of Habeas Corpus, p. 7).

II. Discussion

The issue of whether a habeas corpus petition is successive may be raised by the district court sua sponte. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). This court dismissed Harris's earlier federal petition, Civil Action Number 4: 10-2874, as time-barred.

In Villanueva v. United States, 346 F.3d 55, 61 (2nd Cir. 2003), the Second Circuit considered the issue of whether a dismissal as time-barred constituted an adjudication on the merits for purposes of the gate-keeping rules on second or successive petitions. That court explained:

As with habeas petitions that are denied as procedurally barred or pursuant to Stone, the dismissal of a § 2255 petition as untimely under AEDPA presents a "permanent and incurable" bar to federal review of the merits of the claim. The bar is permanent because, unlike cases where a habeas or § 2255 petition is dismissed without prejudice for failure to exhaust or as premature, a time-bar cannot be corrected. Accordingly, we hold that a habeas or § 2255 petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes.

Id. at 61.

In In re Flowers, 595 F.3d 204 (5th Cir. 2009), the Fifth Circuit reasoned as follows:

Flowers argues that he need not obtain authorization to file a second § 2254 application attacking his conviction because his first § 2254 application was dismissed as time barred. Because the claims Flowers raises in his proposed § 2254 application were or could have been raised in his first § 2254 application, which was filed in 1998 and later that year was dismissed as time-barred under section 2244(d)(l)(A) (and as to which dismissal we and the district court denied a certificate of appealability), the instant application is successive. See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998); Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044, 1045-46 (5th Cir. 1989); In re Pope, No. 08-50957 (5th Cir. Dec. 3, 2008). See also Altman v. Benik, 337 F.3d 764 (7th Cir. 2003).

Id. at 205.

This court lacks jurisdiction to consider Harris's petition as it is a "successive" application governed by the amendments to the AEDPA requiring that the Fifth Circuit authorize the district court to consider ...


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