United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
H. BENNEIIF UNITED STATES DISTRICT JUDGE
petitioner, Leroy Henderson, seeks a writ of habeas corpus to
challenge a state court judgment under 28 U.S.C. § 2254.
(Docket Entry No. 1). He has also filed a memorandum of law
in support of claims. (Docket Entry No. 2). After considering
all of the pleadings, and the applicable law, the Court
dismisses this case because Henderson does not have the
necessary permission to file it, meaning that this Court has
no jurisdiction. The reasons are explained below.
is incarcerated in the Texas Department of Criminal Justice -
Correctional Institutions Division as the result of his 1998
convictions in Harris County Cause Numbers 763935 and 763936.
Following a joint trial, a jury convicted Henderson of
committing aggravated sexual assault of a child and sexual
assault of a child. On June 25, 1998, the trial court
sentenced him to concurrent 50-year and 20-year prison terms.
The Fourteenth Court of Appeals of Texas affirmed
Henderson's convictions on direct appeal. Henderson
v. State, Nos. 14-98-00763-CR& 14-98-00764-CR, 2000
WL 232013 (Tex. App.-Houston [14th Dist] 2000, pet. granted).
Henderson's petitions for discretionary review were
initially granted on October 4, 2000; however, they were
subsequently dismissed, as improvidently granted, on May 1,
2002. See Henderson v. State, P.D.R. Nos. 1125-00
& 1126-00. The Court of Criminal Appeals denied
Henderson's motions for rehearing. He did not petition
the United States Supreme Court for a writ of certiorari.
has filed sixteen applications for a state writ of habeas
corpus under Article 11.07 of the Texas Code of Criminal
Procedure, all of which were denied or dismissed by the Texas
Court of Criminal Appeals. See Ex parte Henderson,
Application Nos. WR-56, 883-01 through-11; WR-56, 883-13
through-15; WR-56, 883-17 through-18.
federal habeas corpus petition dated June 14, 2018, Henderson
contends that he is entitled to relief because the State
engaged in prosecutorial misconduct by failing to disclose
exculpatory evidence of a rape kit test. (Docket Entry No. 1,
at 6). A review of public court records for this Court and
the Fifth Circuit Court of Appeals reveals that Henderson has
previously filed numerous unsuccessful § 2254 habeas
petitions and motions for authorization to file successive
habeas petitions challenging the same 1998 convictions for
aggravated sexual assault of a child and sexual assault of a
child. See Henderson v. Stephens, Civil No.
4:14-cv-0952 (S.D. Tex. April 21, 2014), and the prior cases
pending petition Henderson filed in this case is an
unauthorized successive application under 28 U.S.C. §
2244(b). Before a second or successive application can be
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 is a
successive writ, this Court has no jurisdiction to consider
it without 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). A later
application is successive when it: (1) raises a claim
challenging the 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). Henderson fails to demonstrate why he could not have
raised the claims he raises here in an earlier federal habeas
petition. The pending petition meets the second-or-successive
issue of whether a habeas corpus petition is successive may
be raised by the district court on its own motion. See
Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997).
Because the pending petition is successive, Henderson must
seek authorization from the Fifth Circuit before this Court
can consider his 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 this authorization from the
Fifth Circuit, this Court lacks jurisdiction over the
petition. Id. at 775. It 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)). This requires
the 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). When 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.
Court concludes that jurists of reason would not debate
whether any procedural ruling in this case was correct or
whether Henderson stated a valid claim for relief. Therefore,
a certificate of appealability will not issue. IV. Conclusion
and Order Based on the foregoing, the Court ORDERS as
habeas corpus petition is DISMISSED without prejudice, for
lack of jurisdiction as an ...