United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Before the Court is the petitioner's
Defendant'[s] Objection to “Order Accepting
Findings and Recommendation of the United States Magistrate
Judge” and Motion for Reconsideration, Rule 22,
FRAP, received on March 7, 2019 (doc. 38). The
post-judgment filing 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 Appeals.
Torres Palomo (Petitioner) filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254 on April 21, 2017,
challenging his 2014 conviction and life sentence in Cause
Nos. 28777 in Hunt County, Texas for continuous sexual abuse
of a child. (doc. 2.) On December 27, 2018, it was
recommended that his federal habeas petition be denied, and
he objected to the recommendation on January 25, 2019. (docs.
29, 32.) The recommendation was accepted, and the petition
was denied on February 5, 2019. (docs. 33, 34.) Petitioner
appealed, and his appeal is pending in the United States
Court of Appeals for the Fifth Circuit. (doc. 36.) He again
objects to the recommended dismissal of his petition and
argues the merits of his claims. (doc. 38 at 2-7.)
NATURE OF SUIT
post-judgment motion that seeks to advance one or more
substantive habeas claims, or attacks a federal court's
previous resolution of a claim on its merits, qualifies as a
second or successive habeas petition. See Gonzalez v.
Crosby, 545 U.S. 524, 530-33 (2005); Ruiz v.
Quarterman, 504 F.3d 523, 526 (5th Cir. 2007).
Petitioner's motion raises substantive grounds for relief
from the state conviction that he originally challenged in
this case, and it is properly construed as a successive
habeas petition under 28 U.S.C. § 2254.
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
Petitioner 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 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 petitions
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, this Court lacks jurisdiction over this
Clerk of the Court should be DIRECTED to (1)
terminate the post-judgment motion (doc. 38) in this habeas
case; (2) open a new habeas case for administrative purposes
only; (3) docket the post-judgment motion (doc. 38) as a
§ 2254 motion filed on March 7, 2019, in that new case;
(4) directly assign the new case to the same District Judge
and Magistrate Judge as in this case; (5) file a copy of the
Findings, Conclusions, and Recommendation of the United
States Magistrate Judge and the order accepting those
Findings, Conclusions, and Recommendation, and the judgment
in that new case; and (6) and without further judicial
action, immediately TRANSFER the newly
opened petition for writ of habeas corpus filed under ...