United States District Court, N.D. Texas, Wichita Falls Division
PAIGE BENNER, TDCJ No. 1278531, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court is a Petition for Writ of Habeas Corpus filed by
Petitioner Paige Benner (the “Petition”) (ECF No.
1) and Motion for Permission to File Successive Writ and
Memorandum in Support Thereof (ECF No. 2). After
consideration of the pleadings and the applicable law, the
undersigned RECOMMENDS that Chief United
States District Judge Barbara M.G. Lynn
TRANSFER the Petition for Writ of Habeas
Corpus (ECF No. 1) to the United States Court of Appeals for
the Fifth Circuit for further proceedings in accordance with
the provisions of 28 U.S.C. § 2244(b).
Paige Benner (“Petitioner”) is an inmate confined
in the Allred Unit of the Texas Department of Criminal
Justice in Iowa Park, Texas. ECF No. 1 at 1. He brings this
action pursuant to 28 U.S.C. § 2254 and challenges his
2004 conviction with docket number 0926958R. Id. at
2. The Petition appears to be successive because it
challenges the same conviction for aggravated assault with a
deadly weapon that Petitioner has challenged in the past.
Id. at 8; Benner v. Quarterman, Civ. A. No.
4:07-CV-326-Y, 2008 WL 3915348, at *1 (N.D. Tex. Aug. 25,
2008). Though Petitioner filed a Motion for Permission to
File Successive Writ and Memorandum in Support Thereof (ECF
No. 2), this Court does not have jurisdiction to grant the
motion, because such a motion must be submitted to the Fifth
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a state prisoner may file a
second or successive application for habeas relief in federal
court. In general, a later petition is 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.
Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th
Cir. 2009); Crone v. Cockrell, 324 F.3d 833, 836-37
(5th Cir. 2003). To raise a new claim, the petitioner must
show that the successive application is based on: (1) a new
rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court; or (2) 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 fact finder
would have found him guilty of the offense. 28 U.S.C. §
a petitioner may file his application in the district court,
however, a three-judge panel of the Fifth Circuit must
determine whether the application makes the requisite prima
facie showing. 28 U.S.C. § 2244(b)(3)(A)-(B). Section
2244(b)(3)(A) constitutes a bar to the district court's
jurisdiction to consider a successive habeas petition unless
the United States Court of Appeals has first granted the
petitioner permission to file such a petition. United
States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)
(per curiam) (concerning a § 2255 motion);
Crone, 324 F.3d at 836 (concerning a § 2254
Fifth Circuit has not issued an order authorizing the court
to consider the successive petition in this case. Petitioner
must obtain such an order before he can file a second
petition for habeas relief challenging his underlying
criminal conviction. Petitioner's current application is
successive under AEDPA, and his failure to obtain leave from
the Fifth Circuit under Section 2244(b)(3) before filing his
current application “acts as a jurisdictional bar to
[this court] asserting jurisdiction over [it] until [the
Fifth Circuit grants him] permission to file [it].”
Key, 205 F.3d at 774 (citations omitted).
these circumstances, a district court may either dismiss the
petition without prejudice pending review by a three-judge
panel of the Fifth Circuit Court of Appeals, or it may
transfer a successive habeas petition 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. 1997).
This appears to be Petitioner's first successive habeas
application concerning the validity of his conviction, and
thus transfer is appropriate. Compare Adams v.
Davis, Civ. A. No. 3:17-CV-1133-N-BN, 2017 WL 2535863,
at *1 (N.D. Tex. May 2, 2017), report and recommendation
adopted, Civ. A. No. 3:17-CV-1133-N, 2017 WL 2505495
(N.D. Tex. June 9, 2017) (May 2, 2017) (holding that transfer
was appropriate when there was not a history of filing
successive habeas petitions aimed at the same issue),
with United States v. King, Civ. A. Nos.
3:97-CR-0083-D-01 & 3:03-CV-1524-D, 2003 WL 21663712, at
*1 (N.D. Tex. July 11, 2003) (holding that petitioner's
history of filing successive habeas petitions warranted a
“dismissal without prejudice . . . [to] better serve
the interests of justice than a transfer[.]”). Because
this is Petitioner's first successive habeas petition
challenging his conviction, the undersigned
RECOMMENDS that Chief United States District
Judge Barbara M.G. Lynn TRANSFER the instant
Petition to the Fifth Circuit for further proceedings in
accordance with the provisions of 28 U.S.C. § 2244(b).
of this Findings, Conclusions, and Recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this Findings, Conclusions,
and Recommendation must file specific written objections
within fourteen days after being served with a copy.
See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P.
72(b)(1). 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, conclusions,
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 ...