United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b) and Special Order 3, this pro se
petition for a writ of habeas corpus under 28 U.S.C. §
2254 was referred to the United States Magistrate Judge. For
the reasons that follow, this successive habeas petition
should be TRANSFERRED to the United States
Court of Appeals for the Fifth Circuit.
was convicted of aggravated kidnapping and sentenced to 15
years' imprisonment. See State v. Miller, No.
F10-42110 (Crim. Dist. Ct. No. 3, Dallas Cty., Tex., Oct. 14,
2011), aff'd, 05-11-01533-CR, 2013 WL 2565478 (Tex. App.
- Dallas, June 7, 2013). He unsuccessfully challenged his
conviction in state and federal habeas proceedings. See
Miller v. Davis, No. 3:15-CV-1448-L-BF, 2016 WL 6471944,
recommendation accepted, 2016 WL 6436333 (N.D. Tex. Oct. 31,
2016) (dismissing federal petition as time barred).
action, Petitioner again challenges his underlying aggravated
kidnapping conviction, raising new grounds based on purported
newly discovered evidence. Doc. 3 at 2, 8. Specifically,
Petitioner complains about conspiracies to prosecute,
convict, and enhance his sentence. Doc. 3 at 6. He also
alleges prosecutorial misconduct. Doc. 3 at 7.
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a petitioner may file a second
or successive application for federal habeas relief. See 28
U.S.C. § 2244(b). In general, 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. See 28 U.S.C.
§ 2244(b)(2). Before a petitioner may file his
application in the district court, however, a three-judge
panel of the United States Court of Appeals for the Fifth
Circuit must determine whether the application makes the
requisite prima facie showing. See 28 U.S.C. §
2244(b)(3)(A) and (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) (section 2255 motion);
see also Crone v. Cockrell, 324 F.3d 833, 836 (5th
Cir. 2003) (section 2254 habeas petition).
United States Court of Appeals for the Fifth Circuit has not
issued an order authorizing this Court to consider the
successive petition in this case. Because Petitioner must
obtain such an order before he can file a successive
application challenging his conviction, his section 2254
petition should be transferred to the United States Court of
Appeals for the Fifth Circuit. Henderson v. Haro,
282 F.3d 862, 864 (5th Cir. 2002); In re Epps, 127 F.3d 364,
365 (5th Cir. 1997).
foregoing reasons, it is recommended that the successive
habeas petition be TRANSFERRED to the United
States Court of Appeals for the Fifth Circuit. See 28 U.S.C.
§ 2244(b)(3); 28 U.S.C. § 1631.
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
of this report and recommendation will be served on all
parties in the manner provided by law. Any party who objects
to any part of this report and recommendation must file
specific written objections within 14 days after being served
with a copy. See 28 U.S.C. § 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 report 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 and legal
conclusions of the magistrate judge that are accepted or
adopted by the district court, ...