United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Donn Deveral Martin, a state
prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice, against Lorie
Davis, director of that division, respondent. Having reviewed
the petition, the court finds that it should be dismissed as
an unauthorized successive habeas petition. No. service has
issued upon respondent.
challenges his 2007 conviction in the 372nd District Court,
Tarrant County, Texas, Case No. 1017612D, for aggravated
sexual assault of a child under 14 years of age for which he
was sentenced to 99 years' confinement. (Pet. 7, doc. 3.)
In 2011 petitioner filed a prior federal habeas petition
challenging the same state-court conviction, which was
dismissed as time-barred under the federal statute of
limitations. See Pet., Martin v. Thaler, No.
4:11-CV-447-Y, doc. 2.
of the Rules Governing Section 2254 Cases in the United
States District Courts and 28 U.S.C. § 2243 both
authorize a habeas-corpus petition to be summarily
dismissed. The Court of Appeals for the Fifth Circuit
recognizes the district courts' authority under Rule 4 to
examine and dismiss frivolous habeas petitions prior to any
answer or other pleading by the state. Kiser v.
Johnson, 163 F.3d 326, 328 (5th Cir. 1999). Title 28
U.S.C. § 2244(b) requires dismissal of a claim presented
in a second or successive petition filed by a state prisoner
under § 2254 that was or could have been presented in a
prior petition unless the petition is based on; (1) a new
rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court; or (2) 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 fact finder
would have found him guilty of the offense. See 28
U.S.C. § 2244(b)(2). Further, before such a petition is
filed in federal district court, the petitioner must move for
authorization to file the petition in the appropriate court
of appeals. Id. § 2244(b)(3)(A).
28 U.S.C. § 2244(b) requires dismissal of a second or
successive petition filed by a state prisoner under §
2254 unless specified conditions are met. 28 U.S.C. §
2244(b) (1)- (2) . A petition is successive when, as
here, it raises a claim or claims challenging the
petitioner's conviction or sentence that were or could
have been raised in an earlier petition. See Crone v.
Cockrell, 324 F.3d 833, 837 (5th Cir. 2003); In re
Cain, 137 F.3d 234, 235 (5th Cir. 1998). The statutory
provision applies even if the petitioner's initial
petition was dismissed on limitations grounds. Further,
before such a petition is filed in federal district court,
the petitioner must move for authorization to file the
petition in the appropriate court of appeals. Id.
§ 2244(b) (3) (A) .
the face of this petition, it is apparent that this is a
successive petition, and petitioner has not alleged or
demonstrated that he has obtained authorization to file such
a petition from the Fifth Circuit Court of Appeals. See 28
U.S.C. § 2244(b) (1) -(3) . Without such authorization,
this court is without jurisdiction to consider the petition.
See Kutzner v. Montgomery Co., 303 F.3d 339, 339
(5th Cir. 2002); United States v. Orozco-Ramirez,
211 F.3d 862, 867 (5th Cir. 2000); Hooker v. Sivley,
187 F.3d 680, 681-82 (5th Cir. 1999). Accordingly, the
petition should be dismissed to allow petitioner to seek
authorization to file his petition in the United States Court
of Appeals for the Fifth Circuit. In re Epps, 127
F.3d 364, 365 (5th Cir. 1997); United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
reasons discussed herein, It is ORDERED that the petition of
petitioner for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 be, and is hereby, dismissed without prejudice as
an unauthorized successive petition. Petitioner has not made
a showing that reasonable jurists would question this
court's procedural ruling. Therefore, it is further
ORDERED that a certificate of appealability be, and is
According to petitioner, "this
petition directly involves this conviction and indirectly
involves the other convictions" in Case Nos. 1017791D
and 1017792D for indecency with a child, Case Nos. 1017793D,
1017794D, and 1017796D for aggravated sexual assault of a
child younger than 14 years of age, and Case Nos. 1066504R,
1066506R, and 1066507R for sexual performance by a
The court takes judicial notice of the
record in petitioner's prior ...