United States District Court, N.D. Texas, Dallas Division
PAUL DEWAYNE THIBODEAUX (TDCJ No. 1539087), Petitioner,
LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Paul Dewayne Thibodeaux, a Texas inmate, has filed a pro
se filing titled Petitioner Memor[andum] of Law In
Support of Writ of Habeas Corpus, which has been construed as
an application for writ of habeas corpus under 28 U.S.C.
§ 2254. See Dkt. No. 3. This resulting action
has been referred to the undersigned United States magistrate
judge under 28 U.S.C. § 636(b) and a standing order of
reference from United States District Judge Sam A. Lindsay.
Because the construed habeas application is an unauthorized
successive petition, the Court should transfer it to the
United States Court of Appeals for the Fifth Circuit for
current petition references a state criminal case number, No.
F08-56041-J. And, as explained in the decision finding his
initial Section 2254 petition to be time-barred, Thibodeaux
“pled guilty to aggravated robbery with a deadly
weapon. State of Texas v. Paul Dewayne
Thibodeaux, No. F-0856041-J (3rd Crim. Dist. Ct., Dallas
County, Tex., Nov. 11, 2008). He did not file an
appeal.” Thibodeaux v. Davis, No.
3:16-cv-2149-M, 2017 WL 6761923, at *1 (N.D. Tex. Aug. 31,
2017), rec. accepted, 2017 WL 6761768 (N.D. Tex.
Sept. 18, 2017).
Standards and Analysis
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits the circumstances under which a
state prisoner may file a “second or successive”
application for federal habeas relief, see generally
28 U.S.C. § 2244, and “was enacted in part to
bring finality to state court judgments, ” Leal
Garcia v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009)
(citing Williams v. Taylor, 529 U.S. 420, 436
(2000)). As the Fifth Circuit has explained,
Section 2244 lays out the requirements for filing successive
petitions, serving as gate-keeper by preventing the repeated
filing of habeas petitions that attack the prisoner's
underlying conviction. The statute does not define
“second or successive, ” however, and we have
made clear that a petition is not “second or
successive” merely because it is numerically second. In
In re Cain, 137 F.3d 234, 235 (5th Cir. 1998), we
defined a “second or successive” petition as one
that “1) raises a claim challenging the
petitioner's conviction or sentence that was or could
have been raised in an earlier petition; or 2) otherwise
constitutes an abuse of the writ.” Section 2244
specifies when a later-in-time petition will be heard.
Despite its strictures, the case law clarifies that there is
a category of petitions that, even though later in time, are
outside the confines of § 2244 and will be heard because
they are not “second or successive” within the
meaning of AEDPA.
Id. (footnotes omitted and internal citation
multiple Section 2254 petitions attack the same judgment(s),
a court “‘look[s] to pre-AEDPA abuse of the writ
principles in determining whether [a] petition is
successive.'” Hardemon v. Quarterman, 516
F.3d 272, 275 (5th Cir. 2008) (quoting Crone v.
Cockrell, 324 F.3d 833, 837 (5th Cir. 2003)); see
Id. (“We held that Crone's petition was
successive because he ‘knew of all of the facts
necessary to raise his [second] claim before he filed his
initial federal petition.' This holding aligned with our
‘strong policy against piecemealing claims.'”
(quoting Crone, 324 F.3d at 837)).
Court must determine whether a subsequent federal habeas
application is second or successive within the meaning of
AEDPA to ensure that there is subject matter jurisdiction.
See Leal Garcia, 573 F.3d at 219 (“AEDPA
requires a prisoner to obtain authorization from the federal
appellate court in his circuit before he may file a
‘second or successive' petition for relief in
federal district court. Without such authorization, the
otherwise-cognizant district court has no jurisdiction to
entertain a successive § 2254 petition.”
(footnotes omitted)); see also Crone, 324 F.3d at
836 (collecting cases); cf. Linzy v. Faulk, No.
14-cv-00962-BNB, 2014 WL 5355293, at *3 (D. Colo. Oct. 21,
2014) (“[t]he one-year limitation period in 28 U.S.C.
§ 2244(d) is not jurisdictional, ” and
“[t]here is no language in 28 U.S.C. § 2244(d)
that would prohibit [a court] from bypassing the issue of
timeliness if the claims asserted in the § 2254
Application are without merit” (citing Day v.
McDonough, 547 U.S. 198, 205 (2006))).
presented in a second or successive application under Section
2254 must be dismissed unless:
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B) (i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would ...