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.
Alan McDonald, a Texas prisoner, filed a pro se
petition for a 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.
2001, Petitioner pleaded guilty to first-degree murder.
State of Texas v. Alan Lynn McDonald, No.
F-00-46077-T (283rd Jud. Dist. Ct., Dallas County, Tex., May
2, 2001). The state trial court adjudicated him guilty and
sentenced him to sixty years in prison. The Fifth District
Court of Appeals subsequently affirmed his conviction and
sentence, McDonald v. State, No. 05-01-0851-CR, 2002
WL 1822440 (Tex. App. - Dallas Aug. 9, 2002, pet. ref'd),
and the Texas Court of Criminal Appeals refused his petition
for discretionary review.
then filed a state habeas petition, Ex parte
McDonald, No. 60, 605-01, which the Court of Criminal
Appeals denied without written order and without a hearing
based on the findings of the trial court. Petitioner also
filed a federal habeas petition under §2254.
McDonald v. Dretke, No. 3:04-cv-2720-B (N.D. Tex.).
The district court denied the petition on the merits. Later,
the Fifth Circuit denied Petitioner's motion for a
certificate of appealability. Petitioner filed four
additional state habeas petitions. The Court of Criminal
Appeals denied leave to file one of the petitions and
dismissed the other three petitions as successive. Ex
parte McDonald, Nos. 60, 605-02, -03, -04, -05.
has now filed this § 2254 petition, in which he argues
the indictment was defective and thus deprived the trial
court of jurisdiction. Respondent filed her answer, arguing
the petition is successive and, therefore, the Court lacks
jurisdiction to consider it. In reply, Petitioner filed a
traverse and an addendum to his traverse.
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 successive, the court must analyze
whether the challenge presented in a second habeas petition
occurred before the petitioner filed his first habeas
petition. Propes v. Quarterman, 573 F.3d 225, 229
(5th Cir. 2009).
Petitioner could have raised his current challenge to the
indictment in his previous § 2254 petition. The Court
therefore finds this petition is successive.
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a federal prisoner may file a
second or successive motion for post-conviction relief.
Antiterrorism and effective death penalty act, Publ. L.
104-132, 110 Stat. 1214 (1996). A defendant must show that
the successive motion is based on: (1) newly discovered
evidence that, if proven and viewed considering the evidence
as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable fact finder 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. See 28 U.S.C. §
2244(b)(2). Before Petitioner files his application in this
Court, a three-judge panel of the Fifth Circuit must
determine whether the application makes the requisite prima
facie showing. See 28 U.S.C. § 2244(b)(3)(A)
Fifth Circuit has not issued an order authorizing this Court
to consider the successive petition. Petitioner must obtain
such an order before another petition for habeas relief under
§ 2254 is filed.
petition for writ of habeas corpus filed under 28 U.S.C.
§ 2254 should be TRANSFERRED to the United States Court
of Appeals for the Fifth Circuit pursuant to In re
Epps, 127 F.3d 364, 365 (5th Cir. 1997).
FOR SERVICE AND NOTICE OF RIGHT ...