United States District Court, N.D. Texas, 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, Charles Eugene Riley Jr., a
state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Director Bryan Collier, 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 1992 conviction in Tarrant County, Texas, Case
No. 0365902R, for aggravated sexual assault with a deadly
weapon for which he is serving a 40-year
sentence. (Pet. 2, doc. 3.) In 2009 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 Order, Riley v.
Thaler, No. 4:09-CV-433-A, doc. 17.
three grounds, petitioner raises the following claims,
(1) non-adjudication of 'insanity' by another
(2) ineffective counsel; and
(3) judicial kidnapping.
(Pet. 6-7, doc. 1.)
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. Riser v.
Johnson, 163 F.3d 326, 328 (5th Cir. 1999).
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