United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
petitioner, Herbert Herman Feist, Jr. (TDCJ #00318012), has
filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 to challenge a long-expired conviction for
aggravated assault (Dkt. 1 at p. 2). After reviewing all of
the pleadings and the applicable law under Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts, the Court concludes that this case must be
DISMISSED for the reasons set forth below.
was convicted of aggravated robbery in Jefferson County in
1981 and received a 40-year prison sentence. In 1992, while
serving his 40-year sentence, Feist evidently stabbed another
man with a ballpoint pen. He pled guilty in 1994 in Brazoria
County to a charge of aggravated assault stemming from that
incident and received a five-year sentence.
years ago, Feist filed a federal habeas petition in this
Court challenging the aggravated assault conviction; and
Judge Gibson, on the recommendation of Judge Froeschner,
dismissed the petition for want of jurisdiction because Feist
had fully discharged the five-year sentence and was no longer
"in custody" for the aggravated assault conviction.
See Case Number 3:97-CV-370 at Dkt. 22 and Dkt.
In this petition, Feist is again challenging the aggravated
assault conviction. His main complaint appears to be that, on
April 16, 2017, the aggravated assault conviction was cited
as a reason that he was denied release on parole (Dkt. 1 at
THIS IS AN UNAUTHORIZED SUCCESSIVE
applicant wishing to file a "second or successive"
federal habeas application with a district court must first
"move in the appropriate court of appeals for an order
authorizing the district court to consider the
application." 28 U.S.C. § 2244(b)(3)(A). This
requirement "creates a gatekeeping mechanism for the
district court's consideration of successive applications
for habeas relief." Propes v. Quarterman, 573
F.3d 225, 229 (5th Cir. 2009). A petition is successive
"when it either presents a challenge to the
petitioner's conviction or sentence that could have been
presented in an earlier petition or can be said to be an
abuse of the writ." Id. (quotation marks
omitted). Feist makes several attacks on the aggravated
assault conviction, most of which amount to challenges to the
sufficiency of the evidence supporting it-a challenge
undercut by Feist's decision to plead guilty. In any
event, Feist could have raised those grounds in his prior
petition, and this petition is successive as defined by the
caselaw. Feist must obtain authorization from the Fifth
Circuit before this Court can consider his petition. Until he
obtains that authorization, this Court lacks jurisdiction
over the petition. United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000).
FEIST IS NO LONGER "IN CUSTODY" FOR HIS
AGGRAVATED ASSAULT CONVICTION.
Court also lacks jurisdiction for the same reason that Judge
Gibson concluded that it lacked jurisdiction 20 years ago:
Feist has fully discharged the five-year sentence and is no
longer "in custody" for the aggravated assault
federal writ of habeas corpus is an extraordinary remedy
which shall not extend to any prisoner unless he is "in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. §§ 2241(c)(3)
& 2254(a); Brecht v. Abrahamson, 507 U.S. 619,
633-34 (1993) (explaining that "the writ of habeas
corpus has historically been regarded as an extraordinary
remedy, a bulwark against convictions that violate
fundamental fairness"). The "in custody"
requirement is essential-"[f]ederal district courts do
not have jurisdiction to entertain section 2254 actions if,
at the time the petition is filed, the petitioner is not
'in custody' under the conviction or sentence which
the petition attacks." Hendrix v. Lynaugh, 888
F.2d 336, 337 (5th Cir. 1989) (citing Maleng v.
Cook, 109 S.Ct. 1923, 1925 (1989)). It has been more
than 20 years since Feist was in custody for the conviction
he (again) seeks to challenge. This Court lacks jurisdiction
over this petition.
CERTIFICATE OF APPEALABILITY
federal habeas corpus petition filed in this case is governed
by the Antiterrorism and Effective Death Penalty Act (the
"AEDPA"), codified as amended at 28 U.S.C. §
2253. Therefore, a certificate of appealability is required
before an appeal may proceed. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); see also
Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997)
(noting that actions filed under either 28 U.S.C. § 2254
or § 2255 require a certificate of appealability).
certificate of appealability will not issue unless the
petitioner makes "a substantial showing of the denial of
a constitutional right, " 28 U.S.C. § 2253(c)(2),
which requires a petitioner to demonstrate "that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Under the controlling standard, a petitioner must
show "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.'" Miller-El, 537 U.S. at 336.
Where denial of relief is based on procedural grounds, the
petitioner must show not only 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."
Slack, 529 U.S. at 484.
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). After careful review of the pleadings and
the applicable law, the Court concludes that reasonable
jurists would not find its assessment of the claims debatable
or wrong. Because the petitioner does not otherwise allege
facts showing that ...