United States District Court, N.D. Texas, Dallas Division
to U.S. Magistrate Judge
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
the Court is the plaintiff's post-judgment Motion to
Vacate and Reverse Sentence(s), received on October 4,
2019 (doc. 43). Based on the relevant filings and applicable
law, the filing should be construed as a new habeas petition
under 28 U.S.C. § 2254, opened as a new case, and
TRANSFERRED to the United States Court of
Appeals for the Fifth Circuit as successive.
Dewayne Whaley (Petitioner) was convicted of aggravated
robbery in Cause Nos. F91-45041 and F93-01488 and engaging in
organized criminal activity in Cause No. F92-36477 in Dallas
County, Texas, on June 9, 1993, and he was sentenced to 40
years' imprisonment in each case. (See doc. 3 at
https://offender.tdcj.texas.gov/offendersearch (search for
petitioner). The judgments were affirmed on appeal. See
Whaley v State, Nos. 11-93-127-CR, 11-93-128-CR,
11-93-129-CR. 11-93-130-CR (Tex. App. - Eastland Dec. 9,
1993, no pet.) He unsuccessfully challenged those convictions
through a federal habeas petition that was dismissed as
barred by the statute of limitations on September 24, 1999.
See Whaley v. Johnson, No. 3:97-CV-2760-D (N.D. Tex.
Sept. 24, 1999). Because of multiple challenges to the same
state convictions, the Fifth Circuit Court of Appeals
sanctioned Petitioner $150 and barred him from further
challenging his conviction or sentence until he paid the
sanction in full, unless he first obtained leave to file a
challenge. In re Whaley, No. 11-10180 (5th Cir.
April 28, 2011).
subsequently filed a civil action under 42 U.S.C. § 1983
against several defendants based on their roles in his
prosecution, conviction, appellate review, and incarceration
in Cause Nos. 91-45041, 92-36477, 92-36482, and 93-01488.
(See No. 3:16-CV-3281-C, docs. 2, 15.) His claims
were dismissed as frivolous by judgment dated September 5,
2017. (See id., doc. 20.) He then filed a
post-judgment Motion for Released [sic] on Parole,
received on January 11, 2018, which contended that there was
no evidence to support his convictions, asked that the state
court judgments be set aside, and sought his release pending
an evidentiary hearing. (See id., doc. 31.) The
filing was construed as a petition for writ of habeas corpus
under 28 U.S.C. § 2254. (See id., doc. 39.) It
was opened as this new habeas case, the petition was filed in
it, and then the case was administratively closed for failure
to comply with the Fifth Circuit's sanction order.
(See docs. 4, 5.) Petitioner appealed the order, but
the appeal was ultimately dismissed for want of prosecution.
(See docs. 6, 23.)
October 30, 2018, the Fifth Circuit notified this Court that
Petitioner had satisfied the sanction in No. 11-10180.
(See doc. 17.) This habeas case was subsequently
reopened and transferred to the Fifth Circuit as successive
on November 20, 2018. (See docs. 18, 20-21.) The
Fifth Circuit denied him leave to file a successive §
2254 petition, sanctioned him in the amount of $300.00, and
barred him from filing any challenge to his conviction or
sentence until he paid the sanction in full, unless he first
obtained leave. (See doc. 27.) It subsequently
granted Petitioner's motion to reinstate the appeal, but
later dismissed it for lack of jurisdiction. (See
docs. 30, 34-35.) Petitioner paid the sanction and filed a
motion for writ of mandamus in this court, which transferred
it to the Fifth Circuit, which then dismissed it for want of
prosecution. (See docs. 38-39, 41.) Petitioner again
seeks to vacate and reverse his convictions in this lawsuit.
(See doc. 43.)
NATURE OF SUIT
Petitioner's motion expressly challenges his state
convictions in this closed habeas action, it is properly
construed as a new habeas petition under 28 U.S.C. §
2254. See Preiser v. Rodriguez, 411 U.S. 475, 487
(1973) (a prisoner seeking to challenge the fact or duration
of confinement may only do so within the exclusive scope of
habeas corpus). The filing should be opened as a new habeas
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 convictions that he challenged
in a prior federal petition that was denied on its merits.
Under Hardemon and Crone, he was required
to present all available claims in that petition. 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 petition challenging the same
new 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 petition. 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 ...