United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
H. BENNETT UNITED STATES DISTRICT JUDGE
petitioner, Colette Angela Richnow, seeks a writ of habeas
corpus to challenge a state court judgment under 28 U.S.C.
§ 2254. The respondent has filed a motion to dismiss for
lack of jurisdiction, and Richnow has filed a response. After
considering all of the pleadings, and the applicable law, the
Court dismisses this case. The reasons are explained below.
is currently incarcerated in the Texas Department of Criminal
Justice -Correctional Institutions Division as the result of
her 2007 conviction in Montgomery County Cause Number
06-09-093 87-CR. Richnow was convicted of two counts of
capital murder and sentenced to life imprisonment without
parole. The Ninth Court of Appeals of Texas affirmed
Richnow's conviction on direct appeal. Richnow v.
State, No. 09-O7-00366-CR, 2008 WL 5096517 (Tex.
App.-Beaumont 2008, pet. ref d). Richnow has filed two
applications for a state writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging her
capital murder conviction. The Texas Court of Criminal
Appeals denied Richnow's first state habeas application
on the merits and dismissed the second application as
subsequent. See Ex parte Richnow, Application Nos.
WR-75, 305-01, WR-75, 305-02.
federal habeas corpus petition dated October 2, 2017, Richnow
contends she is entitled to relief on the following grounds:
(1) actual innocence; (2) denial of due process and equal
protection at trial based on inconclusive DNA testing; and
(3) ineffective assistance of trial counsel. Richnow states
her claims are based on newly-discovered evidence and/or
records reflect that Richnow has filed a previous federal
habeas corpus petition to challenge her conviction for
capital murder. See Richnow v. Thaler, Civil No.
4:11-cv-3080 (S.D. Tex. 2012) (dismissed with prejudice on
pending petition filed by Richnow in this case is an
unauthorized successive application under 28 U.S.C. §
2244(b). In that respect, before a second or successive
application permitted by this section is filed in the
district court, the applicant must move in the appropriate
court of appeals for an order authorizing the district court
to consider the application. See 28 U.S.C. §
2244(b)(3)(A). If the pending petition qualifies as a
successive writ, this Court has no jurisdiction to consider
it absent prior authorization from the Fifth Circuit.
Fifth Circuit has recognized that "a prisoner's
application is not second or successive simply because it
follows an earlier federal petition." In re
Cain, 137 F.3d 234, 235 (5th Cir. 1998). Rather, a later
application is successive when it: (1) raises a claim
challenging the petitioner's conviction or sentence that
was or could have been raised in an earlier petition; or (2)
otherwise constitutes an abuse of the writ.'"
Id.; see also United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). In
her response, Richnow concedes that her petition is
successive and asks this Court to dismiss her case without
prejudice so that she may request permission from the Fifth
Circuit to proceed with her claims.
the pending petition is successive, Richnow is required to
seek authorization from the Fifth Circuit before this Court
can consider her application. See 28 U.S.C. §
2244(b)(3)(A). "Indeed, the purpose of [28 U.S.C. §
2244(b)] was to eliminate the need for the district courts to
repeatedly consider challenges to the same conviction unless
an appellate panel first found that those challenges had some
merit." United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000) (citing In re Cain, 137 F.3d 234,
235 (5th Cir. 1998)). Absent such authorization, this Court
lacks jurisdiction over the petition. Id. at 775.
Accordingly, the petition must be dismissed as an
unauthorized successive writ.
Certificate of Appealability
of the Rules Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner.
See 28 U.S.C. § 2253. A 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, this requires a petitioner to 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 v. Cockrell, 537 U.S.
322, 336 (2003). 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. See Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000). For reasons set forth above, this Court
concludes that jurists of reason would not debate whether any
procedural ruling in this case was correct or whether Richnow
states a valid claim for relief. Therefore, a certificate of
appealability will not issue.