United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE
Fielding, state prisoner number 01434713, brings a petition
for a writ of habeas corpus under 28 U.S.C. § 2254
before the Court. He challenges Respondent Lori Davis's
custody over him based on his state-court conviction in the
41st Judicial District Court of El Paso County, Texas in
cause number 20060D02215 for sexual assault, enhanced with a
prior felony conviction for burglary of a habitation.
Fielding v. State, 266 S.W.3d 627, 628 (Tex. App.
2008, pet. ref'd). He alleges the trial court improperly
permitted an amendment to the indictment, he entered his plea
involuntarily, and his counsel provided ineffective
assistance. Pet'r's Pet. 6-7, ECF No. 1. He asks the
Court to quash the indictment and order a new trial.
Id. at 7.
reasons discussed below, the Court will dismiss
Fielding's petition without prejudice. The Court will
additionally deny him a certificate of appealability.
Court notes Fielding filed a prior § 2254 petition
attacking the same conviction on May 2, 2011. Fielding v.
Quarterman, P-11-CV-00053-RAJ, Pet'r's Pet., ECF
No. 1. The Court denied and dismissed the petition as time
bared on November 16, 2011. Id., Order, ECF No. 10.
enacted the Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (April 24,
1996), in part to make it “significantly harder for
prisoners filing second or successive federal habeas
applications under 28 U.S.C. § 2254 to obtain hearings
on the merits of their claims.” Graham v.
Johnson, 168 F.3d 762, 772 (5th Cir. 1999). It requires
dismissal of a second or successive petition filed by a state
prisoner under § 2254 unless “the claim relies on
a new rule of constitutional law . . . or . . . the factual
predicate . . . could not have been discovered previously
through the exercise of due diligence.” 28 U.S.C.
§ 2244(b)(2). More importantly, it bars a district court
from considering a second or successive petition unless the
petitioner first moves “in the appropriate court of
appeals for an order authorizing the district court to
consider the application.” Id. §
2244(b)(3)(A); see also United States v. Key, 205
F.3d 773, 774 (5th Cir. 2000) (explaining §
2244(b)(3)(A) acts as a jurisdictional bar to a district
court asserting jurisdiction over any successive habeas
petition until a court of appeals grants the petitioner
permission to file one); Hooker v. Sivley, 187 F.3d
680, 681-82 (5th Cir. 1999) (“[T]he district court
lacked jurisdiction to construe Hooker's petition as a
§ 2255 motion because he had not received prior
authorization from us to file a successive § 2255
Congress did not define the phrase ‘second or
successive,' . . . the phrase does not simply
‘refe[r] to all section 2254 applications filed second
or successively in time.'” Magwood v.
Patterson, 561 U.S. 320, 332 (2010). The Supreme Court
permits a petitioner to pursue another petition without prior
authorization from a court of appeals in three situations.
First, a petitioner may proceed when he raises a claim which
was not ripe at the time of his first application. See
Panetti v. Quarterman, 551 U.S. 930, 947 (2007)
(“We are hesitant to construe a statute, implemented to
further the principles of comity, finality, and federalism,
in a manner that would require unripe (and, often, factually
unsupported) claims to be raised as a mere formality, to the
benefit of no party.”). Second, a petitioner may
proceed when he raises a claim which was dismissed from his
first application as premature, but is now ripe. See
Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44
(1998) (“There was only one application for habeas
relief, and the District Court ruled (or should have ruled)
on each claim at the time it became ripe. Respondent was
entitled to an adjudication of all of the claims presented in
his earlier, undoubtedly reviewable, application for federal
habeas relief. The Court of Appeals was therefore correct in
holding that respondent was not required to get authorization
to file a ‘second or successive' application before
his . . . claim could be heard.”). Finally, a
petitioner may proceed when he raises a claim which was
previously dismissed for lack of exhaustion. See Slack v.
McDaniel, 529 U.S. 473, 478 (2000) (“[A] habeas
petition which is filed after an initial petition was
dismissed without adjudication on the merits for failure to
exhaust state remedies is not a ‘second or
successive' petition as that term is understood in the
habeas corpus context.”).
application is clearly second or successive, however, when it
(1) raises a claim “that was or could have been raised
in an earlier petition, ” or (2) “otherwise
constitutes an abuse of the writ.” In re Cain,
137 F.3d 234, 235 (5th Cir. 1998). See also Graham v.
Johnson, 168 F.3d 762, 774 n.7 (5th Cir. 1999)
(“Under current law, however, it is clear that an
application filed after a previous application was fully
adjudicated on the merits is a second or successive
application within the meaning of 28 U.S.C. § 2244(b),
even if it contains claims never before raised.”).
Court finds Fielding clearly could have raised his claims in
the instant petition in his prior petition. The Court denied
Fielding's prior petition as time barred and not because
his claims were not ripe or he failed to exhaust his state
remedies. The Court concludes, therefore, that Fielding's
instant pleading is a successive § 2254 application
within the meaning of the AEDPA. Moreover, because Fielding
has not shown the requisite authorization from the Fifth
Circuit Court of Appeals, the Court also concludes it lacks
jurisdiction to hear his claims. Key, 205 F.3d at
774; Hooker, 187 F.3d at 681-82. The Court must
accordingly dismiss Fielding's petition without prejudice
to his re-filing, should he obtain proper approval from the
Fifth Circuit Court of Appeals.
AEDPA also requires a certificate of appealability before an
appeal may proceed in this matter. 28 U.S.C. § 2253;
see Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th
Cir. 1997) (noting that appeals of causes initiated under
either 28 U.S.C. §§ 2254 or 2255 require a
certificate of appealability). “This is a
jurisdictional prerequisite because the statute mandates that
‘[u]nless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals.'” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C.
§ 2253(c)(1)). A circuit justice or judge will not issue
a certificate of appealability unless the petitioner makes
“a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
This standard “includes showing that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Slack, 529
U.S. at 483-84 (internal quotations and citations omitted).
Court concludes in this case that reasonable jurists would
not find the Court's procedural rulings debatable.
Consequently, the Court will not issue a certificate of
appealability from its decision.
reasons discussed above, the Court enters the following
IS ORDERED that Gilbert Fielding's
“Petition for a Writ of Habeas Corpus by a Person in
State Custody” 28 U.S.C. § 2254 (ECF No. 1) is
DISMISSED WITHOUT PREJUDICE.
IS FURTHER ORDERED that Gilbert Fielding is
DENIED a CERTIFICATE OF
APPEALABILITY IT IS ALSO ORDERED
that all pending motions, if any, are DENIED AS
IS FINALLY ORDERED that the Clerk ...