United States District Court, E.D. Texas, Tyler Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
D. KERNODLE UNITED STATES DISTRICT JUDGE
Ronald Smith, an inmate of the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro
se, filed this petition complaining of the legality of his
conviction. Docket No. 1. The Court referred the matter to
United States Magistrate Judge John D. Love for consideration
pursuant to 28 U.S.C. § 636. The Magistrate Judge
recommends dismissal of the petition. As explained below, the
Court adopts the Magistrate Judge's recommendation.
April 16, 2013, Petitioner was convicted by a jury of felony
driving while intoxicated, enhanced by two prior felony
convictions. He received a sentence of life in prison. After
pursuing his state remedies by direct appeal and habeas
corpus, on April 6, 2015, Petitioner filed a federal habeas
corpus petition challenging his conviction. Petitioner
argued, among other things, that the evidence of his blood
draw should have been excluded in the state trial because the
blood draw was unlawful under Missouri v. McNeely,
569 U.S. 141 (2013). On September 29, 2016, the Court
dismissed the petition with prejudice because the Magistrate
Judge found that, even if the evidence of the blood draw had
been excluded, there was considerable other evidence of
intoxication supporting the jury's guilty verdict.
See Smith v. Director, TDCJ-CID, No. 6:15-cv-386,
2016 WL 5475828 (E.D. Tex. Sept. 29, 2016). The Fifth Circuit
Court of Appeals then denied Petitioner a certificate of
appealability and leave to proceed in forma pauperis
on appeal. Smith v. Davis, Director, TDCJ-CID, No.
16-41459 (5th Cir. Sept. 11, 2017).
March 5, 2019, Petitioner submitted his current federal
habeas corpus petition, challenging the same conviction. The
Magistrate Judge recommends dismissal because Petitioner
failed to obtain an order from the Fifth Circuit authorizing
the district court to consider a second or successive
application, as required by 28 U.S.C. § 2244(b)(3).
Docket No. 9. Indeed, although Petitioner sought leave to
file a successive petition, the Fifth Circuit denied his
motion on May 8, 2019. In re Ronald Graig Smith, No.
19-40159 (5th Cir. May 8, 2019). Without an order from the
Fifth Circuit, the Magistrate Judge concluded, this Court
lacks jurisdiction to consider his claims. See Crone v.
Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
filed objections to the Report and Recommendation. In his
objections, Petitioner concedes that the Fifth Circuit denied
him leave to file a successive petition, but argues that the
Court still has jurisdiction here. Docket No. 11 at 1. He
primarily contends that the state court (the 241st Judicial
District Court of Smith County, Texas) committed fundamental
error by denying his state habeas petition because the blood
draw was unconstitutional and he received ineffective
assistance of counsel. Id. These arguments, however,
were raised in Petitioner's original federal habeas
petition, which this Court already denied, and they do not
address Petitioner's failure to comply with 28 U.S.C.
§ 2244(b)(3). In re Ronald Graig Smith, No.
19-40159 (5th Cir. May 8, 2019).
line, Petitioner also seems to challenge his conviction based
on a claim of actual innocence. Docket No. 11 at 1. However,
Petitioner cannot evade the statutory requirement of
obtaining leave to file a successive petition through a
conclusory claim of actual innocence. In re
Warren, 537 Fed.Appx. 457, 2013 WL 3870423 (5th Cir.
made a de novo review of the objections raised by Petitioner,
the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct and that Petitioner's
objections are without merit. The Court therefore adopts the
findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court. It is accordingly
that the Report and Recommendation (Docket No. 9) is ADOPTED
as the opinion of the District Court. It is further
that the Petitioner's complaint, construed as an
application for the writ of habeas corpus, is DISMISSED WITH
PREJUDICE as to its refiling without obtaining permission
from the Fifth Circuit, but without prejudice as to its
refiling once such permission has been obtained. It is
that a certificate of appealability is DENIED, with such
denial referring solely to an appeal of this case and having
no effect upon Petitioner's right to seek permission from
the Fifth Circuit to file a successive petition. It is
that any and all motions which may be pending in this civil