United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER OF DISMISSAL
MELINDA HARMON UNITED STATES DISTRICT JUDGE
Christopher Keith Handy, a state prisoner, has filed this
federal petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, again seeking relief from a state court
conviction and sentence. (Docket Entry No. 1). After a review
of court records, the Court concludes that the petition must
be dismissed as successive.
records indicate that petitioner has filed at least two prior
petitions for habeas corpus relief of his January 14, 1997
conviction for aggravated assault with a deadly weapon in
cause numbers 727971 and 727972 in the 174th Judicial
District Court of Harris County, Texas. See Handy v.
Johnson, Civ. A. No. H-99-0527 (S.D. Tex. Sept. 22,
2000) (dismissing the petition on the merits); Handy v.
Dretke, Civ. A. No. H-05-2848 (S.D. Tex. Aug. 25, 2005)
(dismissing the petition as successive). Petitioner again
raises some of the same claims that he raised or could have
raised in his previous petitions, that is, he claims that he
was denied counsel of his choice and that the judge entered a
false guilty plea. See Docket Entry No. 1;
Handy, Civ. A. No. H-99-0527. Therefore, this Court
is required to dismiss those claims. See 28 U.S.C.
§2244(b)(1); see also In re Cain, 137 F.3d 234,
235 (5th Cir. 1998) (holding that 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”).
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 lacks jurisdiction to consider the
petitioner's petition as it is a successive petition
requiring Fifth Circuit authorization before a district court
may consider it. 28 U.S.C. § 2244(b)(3). There is no
indication on the record that the United States Court of
Appeals for the Fifth Circuit has authorized this court to
consider petitioner's successive petition. Therefore,
this Court lacks jurisdiction to consider petitioner's
habeas claims. See Burton v. Stewart, 549 U.S. 147,
149 (2007). Accordingly, this action is
DISMISSED without prejudice to petitioner
seeking authorization from the Court of Appeals to proceed in
this Court on any new claims.
certificate of appealability from a habeas corpus proceeding
will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. §2253(c)(2). This standard
“includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Id.; Beazley v. Johnson, 242 F.3d 248,
263 (5th Cir. 2001). On the other hand, when denial of relief
is based on procedural grounds, the petitioner must not only
show that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right, ” but also that they “would
find it debatable whether the district court was correct in
its procedural ruling.” Beazley, 242 F.3d at
263 (quoting Slack, 529 U.S. at 484); see also
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).
A district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000). For the reasons set forth in the Memorandum
and Order on Dismissal, the Court has determined that
petitioner has not made a showing that reasonable jurists
could disagree regarding the Court's procedural ruling.
Therefore, a certificate of appealability from this decision
will not issue.
CONCLUSION AND ORDER
on the foregoing, the Court ORDERS as
action is DISMISSED without prejudice as a
certificate of appealability is DENIED.
Petitioner's Motion to Proceed In Forma Pauperis
(Docket Entry No. 2) is GRANTED
other pending motions, if any, are DENIED.
Clerk will enter this Order, providing a correct copy to ...