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Riley v. Collier

United States District Court, N.D. Texas, Worth Division

November 14, 2019

CHARLES EUGENE RILEY JR., Petitioner,
v.
DIRECTOR BRYAN COLLIER, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         This is 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.

         I. Factual Background

         Petitioner 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.[1] (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.[2]

         II. Issues

         In three grounds, petitioner raises the following claims, verbatim:

(1) non-adjudication of 'insanity' by another jurisdiction;
(2) ineffective counsel; and
(3) judicial kidnapping.

(Pet. 6-7, doc. 1.)

         III. Successive Petition

         Rule 4 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.[3] 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).

         Title 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) .

         From 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 ...


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