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. Before the Court are the petitioner's
Motion for Leave of Court to File Motion for
Relief of Judgment Pursuant to Rule 60(b)(6) and
Offer of Judgment Pursuant to Fed. R. Civ. Proc.
68, received on March 28, 2018 (docs. 46, 47). Based on
the relevant filings and applicable law, the post-judgment
filings should be construed as a successive habeas petition
under 28 U.S.C. § 2254, opened as a new case, and
TRANSFERRED to the Fifth Circuit Court of
Lamar Lott (Petitioner) filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 on May 20, 2013,
challenging his 2009 conviction and seventy-year sentence in
Cause No. F09-00780-I in Dallas County, Texas, for engaging
in organized criminal activity by committing aggravated
assault with intent to establish, maintain, or participate as
a member of a criminal street gang. (Doc. 1.) His federal
habeas petition was denied on June 23, 2015. (Doc. 22.) The
United States Court of Appeals for the Fifth Circuit denied a
certificate of appealability. (Doc. 35; Lott v.
Davis, No. 15-10663 (5th Cir. July 26, 2016)). On July
25, 2017, Petitioner filed a motion for leave to file a
motion for summary judgment that was construed as a
successive habeas petition and transferred to the Fifth
Circuit. (Docs. 38, 44.) The Fifth Circuit denied
authorization to file a successive petition. See In re
Lott, No. 17-10938 (5th Cir. Nov. 22, 2017). Petitioner
now contends that the evidence was insufficient to support
his conviction. (Doc. 46 at 1.)
NATURE OF SUIT
motion for relief from judgment that seeks to advance one or
more substantive habeas claims, or attacks a federal
court's previous resolution of a claim on its merits,
qualifies as a second or successive habeas petition. See
Gonzalez v. Crosby, 545 U.S. 524, 530-33 (2005);
Ruiz v. Quarterman, 504 F.3d 523, 526 (5th Cir.
2007). A motion that merely challenges the failure to reach
the merits of the habeas petition is properly filed under
Rule 59(e) or Rule 60(b) of the Federal Rules of Civil
Procedure, however. See Gonzalez, 545 U.S. at 538
(holding that a post-judgment motion in a § 2254 case
“is not to be treated as a successive habeas petition
if it does not assert, or reassert, claims of error in the
movant's state conviction” and noting that
“[a] motion that . . . challenges only the District
Court's failure to reach the merits does not warrant such
treatment”); see also Chase v. Epps, 74
Fed.Appx. 339, 345 (5th Cir. 2003) (per curiam) (a
post-judgment motion that “purports to challenge the
denial of a 28 U.S.C. § 2254 petition but actually
attacks the underlying criminal conviction may be construed
as a successive . . . application”) (citations
Petitioner's Rule 60(b) motion and offer of judgment do
not challenge the failure to reach the merits of his original
habeas petition, and they assert grounds for relief from the
same underlying state court conviction that he originally
challenged in this case, they are properly construed as a
successive habeas petition under 28 U.S.C. § 2254.
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 federal petition challenging the same conviction.
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). Before
Petitioner files his application in this Court, a three-judge
panel of the Fifth Circuit Court of Appeals must determine
whether the application makes the requisite prima facie
showing. See Id. § 2244(b)(3)(A) and (B).
Because 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
post-judgment filings (docs. 46, 47) should be construed as a
successive petition and 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.
1997). The Clerk of the Court should be
DIRECTED to (1) terminate the post-judgment
filings (docs. 46, 47) in this habeas case; (2) open a new
habeas case for administrative purposes only; (3) docket the
post-judgment filings in that new case as a § 2254
petition filed March 28, 2018; (4) directly assign the new
case to the same District Judge and Magistrate Judge as in
this case; (5) file a copy of the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge and the
order accepting those Findings, Conclusions, ...