United States District Court, N.D. Texas, Dallas Division
JESUS F. JIMENEZ, Petitioner,
LORIE DAVIS, Director, TDCJ-CID Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE.
Jesus Jimenez,  a Texas prisoner, filed a pro se
petition for writ of habeas corpus under 28 U.S.C. §
2254. The District Court referred the resulting civil action
to the United States magistrate judge, pursuant to 28 U.S.C.
§ 636(b) and a standing order of reference. For the
following reasons, the the petition should be transferred to
the Fifth Circuit Court of Appeals as successive.
2006, Petitioner was convicted of aggravated robbery and was
sentenced to sixty-five years in prison. State of Texas
v. Juan Fraire Jimenez, F04-54039-MI (2nd Dist. Ct.,
Dallas County, Tex., Sept. 7, 2006). On March 13, 2008, the
Fifth District Court of Appeals affirmed. Jimenez v.
State, No. 05-06-01374-CR (Tex. App. - Dallas 2008, no
pet.). Petitioner then filed a state habeas petition
challenging his conviction, which the Court of Criminal
Appeals denied without written order on the findings of the
trial court without a hearing. Ex parte Jimenez, No.
April 5, 2011, Petitioner filed his first § 2254
petition. See Jimenez v. Thaler, No.
3:11-cv-697-B-BK (N.D. Tex.). He argued, inter alia,
that he received ineffective assistance of counsel when
counsel failed to inform him of a twenty-five-year plea
offer. On January 9, 2012, the district court denied the
petition. On April 17, 2013, the Fifth Circuit Court of
September 3, 2018, Petitioner filed the instant § 2254
petition. He again argues he received ineffective assistance
of counsel when counsel failed to inform him of a
twenty-five-year plea offer.
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a federal prisoner may file a
second or successive motion for post-conviction relief.
Antiterrorism and effective death penalty act, Publ. L.
104-132, 110 Stat. 1214 (1996). A defendant must show that
the successive motion 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 fact finder 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. See 28 U.S.C. §
2244(b)(2). Before Petitioner files his application in this
Court, a three-judge panel of the Fifth Circuit must
determine whether the application makes the requisite prima
facie showing. See 28 U.S.C. § 2244(b)(3)(A)
Fifth Circuit has not issued an order authorizing this Court
to consider the successive motion. Petitioner must obtain
such an order before another petition for habeas relief under
§ 2254 is filed.
foregoing reasons, the 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 In re Epps, 127 F.3d 364, 365 (5th Cir.
FOR SERVICE AND NOTICE OF RIGHT TO
of this report and recommendation shall 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). 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