Opinion
No. 3:03-CV-2091-H.
November 10, 2004.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : Petitioner pled guilty to possession of a controlled substance and was placed on ten years deferred adjudication probation in Cause No. F90-32615-R. See Hamilton v. Cockrell, No. 3:02-CV-2556-G (N.D. Tex.) (findings, conclusions, and recommendation (FCR) dated Apr. 14, 2003, in a related habeas action by petitioner). In July 2000, he was adjudicated guilty and sentenced to twenty-five years imprisonment. Id.; accord (Pet. at 2; Mem. Supp. at 7). In November 2002, he filed a federal petition claiming that he received ineffective assistance of counsel at his revocation hearing and on appeal. See Hamilton, No. 3:02-CV-2556-G (FCR dated Apr. 14, 2003). On May 1, 2003, the Court denied the November 2002 petition. Id. (Judgment). In September 2003, petitioner commenced the instant action wherein he alleges that he was denied his Constitutional rights when he pled guilty and received deferred adjudication probation. (Pet. at 7.) He asserts that an insufficient investigation by his attorney renders his guilty plea involuntary. (Mem. Supp. at 5-14.) He also asserts that his trial attorney rendered ineffective assistance by not objecting to an allegedly defective indictment. ( Id. at 10.) He further asserts that the State withheld favorable evidence from him, i.e., a police report which showed possession of cocaine residue, not cocaine. ( Id. at 10-18.)
Because petitioner has filed a previous federal petition, the Court must determine whether the instant petition is a second or successive application within the meaning of 28 U.S.C. § 2244(b).
II. SECOND OR SUCCESSIVE APPLICATION
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA) limits the circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. In general, "a later petition is successive when it: 1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ." Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 287 (2003); accord United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). A petition that is literally second or successive, however, is not necessarily a second or successive application for purposes of the AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). In Stewart, the Supreme Court declined to construe an application as second or successive when it followed a previous dismissal due to prematurity or lack of exhaustion. Id. "To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Id. at 645.
Although the Fifth Circuit Court of Appeals decided Orozco-Ramirez in the context of a motion to vacate under 28 U.S.C. § 2255, it also found it appropriate to rely upon cases decided under 28 U.S.C. § 2254 in reaching its decision. See 211 F.3d at 864 n. 4. In the present context, this Court also finds it appropriate to make no distinction between cases decided under § 2255 and those under § 2254.
The limitation on the filing of a second or successive petition in federal court applies whether the petitioner raises claims to invalidate his underlying conviction or, as in this case, claims related to a revocation of probation. See Pritchard v. Henderson, 440 F.2d 660, 660-61 (5th Cir. 1971) (probation case). In McGary v. Scott, 27 F.3d 181 (5th Cir. 1994), the Fifth Circuit Court of Appeals stated that, "[t]he law requires federal habeas petitioners to assert in their first habeas application all claims known of, all claims that should have been known of, and all claims that had been known of." 27 F.3d at 185. In Crone, the Fifth Circuit reaffirmed its "strong policy against piecemealing claims" set forth in McGary. See 324 F.3d at 337.
Although the Fifth Circuit decided Pritchard before the AEDPA came into existence, its rationale is equally applicable to the successive provision of the AEDPA and it is appropriate to consider pre-AEDPA law to interpret that provision. See Slack v. McDaniel, 529 U.S. 473, 486 (2000) (applying pre-AEDPA law to a federal petition filed prior to the AEDPA's enactment but specifically noting that "we do not suggest the definition of second or successive would be different under AEDPA"); Stewart, 523 U.S. at 640-46 (using pre-AEDPA law to interpret AEDPA's provision governing "second or successive habeas applications").
In this case, petitioner's previous petition was not dismissed because of any prematurity or lack of exhaustion. Under Orozco-Ramirez, McGary, and Crone, petitioner therefore was required to present all available claims in his earlier federal petition.
"The requirement that all available claims be presented in a prisoner's first habeas petition is consistent not only with the spirit of AEDPA's restrictions on second and successive habeas petitions, but also with the preexisting abuse of the writ principle. The requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for a unitary presentation to the district court."Orozco-Ramirez, 211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (1st Cir. 1997)).
Petitioner challenged his probation revocation in his previous federal petition. Herein, he specifically challenges the conviction which led to his placement on deferred adjudication probation. His current claims relate to a contention that he did not possess cocaine, but rather cocaine residue as shown in a "newly discovered" police report. (Mem. Supp. at 6.) He also claims that his case is one of the fake-drug cases brought to light in 2001 and 2002. ( Id.) The factual basis for petitioner's current claims occurred prior to the filing of his first federal petition in November 2002. There is no apparent reason why petitioner could not have raised the instant challenge in his previous federal petition.
Although petitioner asserts that he has "newly discovered evidence" that he did not possess cocaine, the police report appears to have been available since its creation in May 1990. In addition, with or without the police report, petitioner should have known whether or not he possessed cocaine when he was arrested. Furthermore, petitioner surely could have discovered the evidence prior to filing his first federal petition in 2002 — more than twelve years after he pled guilty and two years after he was adjudicated guilty. When he filed his previous petition he should have known the facts underlying the claims raised in the instant petition. Petitioner has shown no reason he could not have raised the instant claims in his earlier petition. His statements about "newly discovered evidence" does not suffice to escape the prohibition on second or successive petitions. Because the instant petition raises claims that petitioner could have raised in his previous petition, the instant federal petition is successive within the meaning of 28 U.S.C. § 2244(b).
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 convincing evidence that no reasonable factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Id. § 2244(b)(2). Before petitioner files his application in this Court, a three-judge panel of the Fifth Circuit Court of Appeals must determine whether the application makes the requisite prima facie showing. See id. § 2244(b)(3)(A) and (B).
The Fifth Circuit has not issued an order authorizing the district court to consider this successive application for habeas relief. Petitioner must obtain such an order before this case is filed.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).