United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant filings and applicable
law, this case should be transferred to the Fifth Circuit
Court of Appeals as a successive petition.
Devote Lee (Petitioner) was convicted of murder in November
1997 in Cause No. F97-46252 in the 282nd Judicial District
Court of Dallas County, Texas, and sentenced to life
imprisonment. (Doc. 3 at 2.) He unsuccessfully challenged
that conviction through a federal habeas petition that was
dismissed as barred by the statute of limitations on October
18, 2004. See Lee v. Dretke, No. 3:04-CV-745-L (N.D.
Tex. Oct. 18, 2004). His federal habeas petition under 28
U.S.C. § 2254 challenges that same conviction. (Doc. 3.)
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). They “must presume that a suit
lies outside this limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking
the federal forum.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). They have
“a continuing obligation to examine the basis for
jurisdiction.” See MCG, Inc. v. Great W. Energy
Corp., 896 F.2d 170, 173 (5th Cir. 1990).
district court cannot exercise jurisdiction over a second or
successive § 2254 petition without authorization from
the court of appeals. See 28 U.S.C. § 2244(b);
Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir.
2003). A petition is successive if it raises a claim that was
or could have been raised in an earlier petition or otherwise
constitutes an abuse of the writ. Hardemon v.
Quarterman, 516 F.3d 272, 275 (5th Cir. 2008);
Crone, 324 F.3d at 836-37. If it essentially
represents a second attack on the same conviction raised in
the earlier petition, a petition is successive.
Hardemon, 516 F.3d at 275-76 (distinguishing
Crone because “Crone involved
multiple § 2254 petitions attacking a single
judgment”). A second petition is not successive if the
prior petition was dismissed due to prematurity or for lack
of exhaustion, however. See Slack v. McDaniel,
529U.S. 473, 487 (2000) (declining to construe an application
as second or successive when it followed a previous dismissal
due to a failure to exhaust state remedies); Stewart v.
Martinez-Villareal, 523 U.S. 637, 643-46 (1998)
(declining to construe an application as second or successive
when it followed a previous dismissal due to prematurity, and
noting the similarities of such dismissal to one based upon a
failure to exhaust state remedies). Otherwise,
“dismissal of a first habeas petition for technical
procedural reasons would bar the prisoner from ever obtaining
federal habeas review.” Stewart, 523 U.S. at
Petitioner challenges the same conviction that he challenged
in a prior federal petition that was denied on its merits.
Under Hardemon and Crone, he was required
to present all available claims in that petition. A claim is
available when it “could have been raised had the
petitioner exercised due diligence.” Leonard v.
Dretke, No. 3:02-CV-0578-H, 2004 WL 741286, at *3 (N.D.
Tex. Apr. 5, 2004) (recommendation of Mag. J.), adopted
by 2004 WL 884578 (N.D. Tex. Apr. 20, 2004). The crucial
question in determining availability is whether Petitioner
knew or should have known through the exercise of due
diligence the facts necessary to his current claims when he
filed his prior federal petition challenging the same
federal petition is successive within the meaning of 28
U.S.C. § 2244(b) because it raises claims that were or
could have been raised in his initial federal petition. When
a petition is second or successive, the petitioner must seek
an order from the Fifth Circuit Court of Appeals that
authorizes this Court to consider the petition. See
28 U.S.C. § 2244(b)(3)(A). The Fifth Circuit “may
authorize the filing of a second or successive application
only if it determines that the application makes a prima
facie showing that the application satisfies the requirements
of [§ 2244(b)].” Id. §
2244(b)(3)(C). To present a claim in a second or successive
application that was not presented in a prior application,
the application must show that it is based on: (1) newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found him guilty of the offense; or (2) a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable. Id. § 2244(b)(2).
the Fifth Circuit has not issued an order authorizing the
district court to consider this successive petition for
habeas relief, this Court lacks jurisdiction over this
petition for writ of habeas corpus filed under 28 U.S.C.
§ 2254 should be TRANSFERRED to the
United States Court of Appeals for the Fifth Circuit pursuant
to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir.
2002) and In re Epps, 127 F.3d 364, 365 (5th Cir.
FOR SERVICE AND NOTICE OF RIGHT TO
of these findings conclusions and recommendation shall be
served on all parties in the manner provided by law Any party
who objects to any part of these findings conclusions and
recommendation must file specific written objections within
14 days after being served with a copy See 28 USC
§ 636(b)(1); Fed R Civ P 72 b) In order to be specific
an objection must identify the specific finding or
recommendation to which objection is made state the basis for
the objection and specify the place in the magistrate
judge's findings conclusion and recommendation where the
disputed determination is found An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific Failure to file specific
written objections will bar the aggrieved party from
appealing the factual findings ...