United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order No. 3-251, this case has been
automatically referred for full case management. Before the
Court is the plaintiff's motion, Fed. R. Civ. P.
60(b) against judgment, received on March 21, 2019 (doc.
42). Based on the relevant findings and applicable law, the
motion 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
Don Gillaspie (Plaintiff), a prisoner currently incarcerated
in the Texas Department of Criminal Justice Stiles Unit, sued
his former criminal defense attorney, the Johnson County
District Attorney (DA), two of his assistant district
attorneys, (ADAs), and a state district judge (Judge), under
42 U.S.C. § 1983 based on their roles in his 2013
conviction and sentence in Cause No. F46910 in Johnson
County, Texas, for theft and tampering with physical
evidence. (See doc. 3 at 3-4; doc. 7 at 1-8,
After twice amending his complaint, he only asserted claims
against the City of Alvarado (City), two defense attorneys,
and two ADAs in connection with his 2013 conviction and
sentence and appeal. (See doc. 31 at 3.) In addition
to raising civil rights claims and seeking monetary damages,
Plaintiff's complaint challenged his state criminal
conviction and sought to have that judgment vacated.
(See doc. 31 at 4.), On September 11, 2018, it was
recommended that the claims against the individual defendants
be dismissed with prejudice as frivolous under 28 U.S.C.
§ 1915A(b) and § 1915(e)(2)(B) because the defense
attorneys were not state actors and not subject to suit under
§ 1983, and the prosecutors were immune from suit in
their official and individual capacities. (See doc.
32.) It was also recommended that the request for habeas
relief be dismissed for failure to state a claim. (See
id.) Finally, it was recommended that the
remaining claims be dismissed with prejudice as frivolous
under §§ 1915A(b) and 1915(e)(2)(B) until Plaintiff
satisfied the conditions in Heck v. Humphrey, 512
U.S. 477, 486-87 (1994), because a finding in his favor on
his claims for monetary damages based on alleged violations
of his rights in connection with his prosecution and
conviction would necessarily imply the invalidity of the
conviction. (See id.) The recommendation was
accepted on October 2, 2018, and judgment was entered.
(See docs. 34, 35.)
September 30, 2018, Plaintiff mailed an Objection to
the recommended dismissal of his action, but it was received
after the judgment was entered. (See doc. 36.) On
November 1, 2018, he filed a motion under Fed.R.Civ.P. 59
that contended his objection was not considered before
judgment was entered. (See doc. 37.) The Rule 59(e)
motion was denied, and his objection was overruled.
(See doc. 40.)
now complains of errors in his state criminal case, and he
asks this Court to “abrogate” the conviction and
to order a jury trial, an evidentiary hearing, and his
immediate release. (See doc. 42 at 4.)
NATURE OF SUIT
Rule 60(b) motion again raises habeas claims, and it only
seeks habeas relief. Because the motion expressly challenges
his state confinement and it only seeks habeas relief, it is
properly construed as a habeas petition under 28 U.S.C.
§ 2254. See Preiser v. Rodriguez, 411 U.S. 475,
487 (1973) (a prisoner seeking to challenge the fact or
duration of confinement may only do so within the exclusive
scope of habeas corpus).
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
Plaintiff challenges the same conviction that he challenged
in a prior federal habeas petition that was denied on the
merits. Under Hardemon and Crone, he was
required to present all available claims in those petitions.
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 the petitioner knew or should have known through
the exercise of due diligence the facts necessary to his
current claims when he filed his prior federal petitions
challenging the same convictions challenged in this case.
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
challenging his conviction. 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).
the Fifth Circuit has not issued an order authorizing the
district court to consider this successive petition for
habeas relief, ...