United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
Edmond Lowe, 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 petition should be transferred to the
Fifth Circuit Court of Appeals as successive.
December 19, 1990, Petitioner was convicted of murder and was
sentenced to sixty-five years in prison. The State of
Texas v. Edmond Steven Lowe, No. F90-34490-P (203rd Jud.
Dist. Ct., Dallas, Tex. Dec. 19, 1990). Petitioner does not
challenge his conviction. Instead, he claims Respondent has
unconstitutionally denied him release to parole.
previously filed a § 2254 challenging Respondent's
decision to deny him release on parole. See Lowe v.
Stephens, No. 3:13-cv-394-P (N.D. Tex.) On January 15,
2014, the District Court dismissed the petition as barred by
the statute of limitations. On June 27, 2014, the Fifth
Circuit denied a certificate of appealability. Lowe v.
Stephens, No. 14-10090 (5th Cir. June 27, 2014).
February 26, 2018, Petitioner filed this § 2254
petition, and on July 9, 2018, he filed an amended petition.
1. Respondent has failed to credit his work and good time
credits towards his sentence;
2. Respondent breached a contract with Petitioner to apply
his work and good time credits towards his sentence;
3. Respondent's decision not to apply his work and good
time credits towards his sentence denied him his property
rights in these time credits;
4. Respondent's reasons for denying him parole are vague;
5. Respondent has failed to apply the parole laws of the 70th
Texas Legislature that were in effect at the time of
Petitioner's conviction and therefore violated the Ex
Post Facto Clause.
September 21, 2018, Respondent filed her answer arguing,
among other things, that this petition is successive. On
November 17, 2018, Petitioner filed a reply. The issue has
thus been fully briefed.
argues the petition is second or successive, and therefore
the Court lacks jurisdiction to consider the petition.
“A petition is not second or successive merely because
it follows an earlier federal application.” Crone
v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). It is
successive when it either presents a challenge to the
petitioner's conviction or sentence that could have been
raised in an earlier petition, or when it is an “abuse
of the writ.” Id. at 836-38. To determine
whether a petition is second or successive, the court must
analyze whether the ...