United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
Lee Wallace (TDCJ #01383446) has filed a Petition for a Writ
of Habeas Corpus by a Person in State Custody
("Petition") (Docket Entry No. 1), challenging the
validity of a state court conviction under 28 U.S.C. §
2254. He has also filed Petitioner's "Memorandum of
Law in Support of his 28 U.S.C. 2254 Writ of Habeas
Corpus" (Docket Entry No. 2) and a "Motion
Requesting [Leave to File] Additional Pages for his 2254 Writ
of Habeas Corpus" (Docket Entry No. 3), which seeks
permission to file pleadings in excess of 20 pages. After
reviewing the pleadings in accordance with Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts, the court will dismiss this case for the
reasons explained below.
is presently incarcerated in the Texas Department of Criminal
Justice - Correctional Institutions Division
("TDCJ") as the result of a conviction and life
sentence that he received on July 31, 2006, in Brazos County
Cause No. 05-03424. Court records reflect that Wallace was
convicted of aggravated sexual assault in that case, which
was affirmed on direct appeal in 2009. See Wallace v.
State, No. 10-08-00357-CR, 2009 WL 2397319, at *1 (Tex.
App. - Waco Aug. 5, 2009, pet. ref'd).
28, 2019, Wallace executed the pending Petition for a federal
writ of habeas corpus to challenge his conviction in Cause
No. 05-03424. Wallace contends that he is entitled to
relief for the following reasons: (1) he was denied effective
assistance of counsel at trial; (2) he was denied effective
assistance of counsel on appeal when his attorney filed an
Anders brief; and (3) his punishment was improperly
enhanced with "extraneous offenses" that were
remote in time.
Wallace challenges a conviction and sentence entered more
than 10 years ago, the pending Petition appears to be barred
by the governing one-year statute of limitations.
See 28 U.S.C. § 2244 (d) (1) (A). More
importantly, this is not the first federal habeas corpus
proceeding that Wallace filed to challenge his conviction in
Brazos County Cause No. 05-03424.
records confirm that Wallace filed a previous federal habeas
corpus proceeding in this district, which challenged the same
conviction entered against him in Cause No. 05-03424. The
district court granted the respondent's motion for sumary
judgment and dismissed that case with prejudice as barred by
the governing statute of limitations on April 24,
2018. See Wallace v. Davis, Civil No.
H-17-3119 (S.D. Tex.) (Docket Entry No. 18).
case is governed by the Anti-Terrorism and Effective Death
Penalty Act (the "AEDPA"), codified as amended at
28 U.S.C. § 2244(b}, which imposes restrictions on the
filing of "second or successive" applications for
habeas relief. Before a second or successive application
permitted by this section may be filed in the district court
the applicant must move in the appropriate court of appeals
for an order authorizing the district court to consider the
application. See 28 U.S.C. § 2244 (b) (3)(A).
If the pending Petition qualifies as a successive writ
application, this court has no jurisdiction to consider it
absent prior authorization from the Fifth Circuit.
"Indeed, the purpose of [28 U.S.C. § 2244(b)] was
to eliminate the need for the district courts to repeatedly
consider challenges to the same conviction unless an
appellate panel first found that those challenges had some
merit." United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000) (citing In re Cain, 137 F.3d 234,
235 (5th Cir. 1998)).
Fifth Circuit has recognized that "a prisoner's
application is not second or successive simply because it
follows an earlier federal petition." In re
Cain, 137 F.3d 234, 235 (5th Cir. 1998). A subsequent
application is "second or successive" when it (1)
"raises a claim challenging the petitioner's
conviction or sentence that was or could have been raised in
an earlier petition" or (2) "otherwise constitutes
an abuse of the writ." Id.; see also United States
v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
Wallace's proposed claims depend on facts that were
available to him at or around the time of his conviction or
his direct appeal and could have been presented previously.
Because these claims could have and should have been raised
long ago, the pending Petition meets the second-or-successive
issue of whether a habeas corpus petition is successive may
be raised by the district court ™ sponte. See
Rodriguez v. Johnson, 104 F.3d 694, 697 (5th
Cir. 1997). Because the pending Petition is successive, the
petitioner is required to seek authorization from the Fifth
Circuit before this court can consider it. See 28
U.S.C. § 2244 (b) (3) (A). There is no record showing
that he has requested or received the requisite
authorization. Absent such authorization this court lacks
jurisdiction over the Petition, which must be dismissed as an
unauthorized successive writ.
Certificate of Apealability
of the Rules Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner. A
certificate of appealability will not issue unless the
petitioner makes "a substantial showing of the denial of
a constitutional right," 28 U.S.C. § 2253(c)(2),
which requires a petitioner to show that "jurists of
reason could disagree with the [reviewing] court's
resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further." Buck v.
Davis, 137 S.Ct. 759, 773 (2017) (citation and internal
quotation marks omitted). Where denial of relief is based on
procedural grounds, the petitioner must show not only that
"jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right," but also that they "would
find it debatable whether the district court was correct in
its procedural ruling." Slack v. McDaniel, 120
S.Ct. 1595, 1604 (2000). Because jurists of reason would not
debate whether the Petition was successive, a certificate of
appealability will not issue.