Opinion
Civil Action No. 4:02-CV-444-A
August 7, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Darrell Wayne Phillips, TDCJ-ID #712352, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Walls Unit in Huntsville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On March 30, 1995, a jury found Phillips guilty of involuntary manslaughter and assessed punishment at 67 years' confinement. (1 State Habeas R. at 156.) Phillips appealed and argued that the State's jury argument was improper. (Appellant Br. at 2.) The Second District Court of Appeals overruled the point and affirmed the trial court's judgment. Phillips v. State, No. 2-95-136-CR (Tex.App.-Fort Worth Sept. 26, 1996, no pet.) (not designated for publication). Although Phillips received an extension in which to file a petition for discretionary review with the Texas Court of Criminal Appeals, he never filed the petition. (Court of Appeals Docket Sheet at 3.)
On August 2, 1999, Phillips filed a state application for habeas corpus relief, arguing ineffective assistance of trial and appellate counsel, denial of a fair trial, and lack of jurisdiction to try him as a habitual offender. (1 State Habeas R. at 3.) The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. Ex parte Phillips, No. 45,865-01 (Tex.Crim.App. Aug. 16, 2000) (not designated for publication). On September 8, 2000, Phillips filed a federal petition for habeas corpus relief, asserting that trial and appellate counsel were constitutionally ineffective, the State suppressed Brady evidence, and the evidence was insufficient to prove the habitual offender paragraphs of the indictment. (Resp't Answer at Ex. A pp. 7-8.) This Court dismissed the petition with prejudice as time-barred. Phillips v. Johnson, No. 4:00-CV-1650-Y (N.D. Tex. Oct. 31, 2000). (Resp't Answer at Ex. B.) Phillips's request for a certificate of appealability was denied by the Fifth Circuit Court of Appeals. Phillips v. Johnson, No. 00-11361 (5th Cir. May 18, 2001). On November 2, 2001, Phillips filed a second state habeas application, which the Court of Criminal Appeals dismissed as a successive and, thus, abusive writ. Ex parte Phillips, No. 45,865-02 (Tex.Crim.App. Jan. 23, 2002) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). Phillips then filed the instant petition for writ of habeas corpus in this Court on May 5, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Cockrell argues that the petition should be dismissed because Phillips failed to first request and obtain permission from the Fifth Circuit to file this successive petition. Phillips has filed a reply.
D. ISSUES
Phillips argues that he is actually innocent of involuntary manslaughter, the State illegally used false evidence during trial, trial counsel was constitutionally ineffective, and he was unlawfully denied a hearing on a 1997 state habeas application. (Federal Pet. at 7-8; Pet'r Reply at 2.)
There is no evidence that Phillips filed a post-conviction habeas corpus application in 1997 as he claims in the instant petition. (Federal Pet. at 8; Pet'r Reply at 2.)
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Phillips has adequately exhausted available state remedies. However, Cockrell specifically does not waive exhaustion and reserves the right to assert the affirmative defense if this court determines the petition is not impermissibly successive. See 28 U.S.C. § 2254(b)(3).
F. SUCCESSIVE PETITION
Cockrell argues that this Court lacks jurisdiction over Phillips's petition due to his failure to request permission from the Fifth Circuit to file a successive petition for writ of habeas corpus raising new grounds. Indeed, Phillips's petition is a second, successive petition challenging his conviction. See In re Cook, 215 F.3d 606, 608 (6th Cir. 2000) (holding previous dismissal, which was for failure to exhaust state remedies when statute of limitations had run on those state remedies, rendered second petition impermissibly successive). Under the habeas corpus statutes, a claim presented in a second or successive habeas corpus petition under § 2254 that was presented in a prior application, i.e., a same-claim successive petition, shall be dismissed in all cases. 28 U.S.C. § 2244(b)(1); see also Tyler v. Cain, 533 U.S. 656, 661 (2001); In re Davis, 121 F.3d 952, 953-54 (5th Cir. 1997); In re West, 119 F.3d 295, 296 (5th Cir. 1997). However, a claim presented in a second or successive habeas corpus petition under § 2254 that was not presented in a prior petition shall be dismissed unless (1) it meets certain stringent requirements and (2) a panel of the appropriate court of appeals authorizes the filing of a second or successive petition after determining that the petition satisfies the section's requirements. 28 U.S.C. § 2244(b)(2)-(3); see also Tyler, 533 U.S. at 661-62. In other words, the court of appeals performs a screening function with new-claim successive petitions. Felker v. Turpin, 518 U.S. 651, 664 (1996).
The petitioner must satisfy the appellate court that (1) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
From court records of which this Court can take judicial notice, it is apparent that Phillips's ineffective-assistance-of-counsel claim was raised in his previous federal habeas petition and the remainder of his claims are brought for the first time in this action. This Court is without jurisdiction to consider Phillips's ineffective-assistance-of-counsel claim and may take no action other than to dismiss it. 28 U.S.C. § 2244(b)(1); West, 119 F.3d at 296. Regarding Phillips's remaining claims, Phillips has not obtained an order from the Fifth Circuit authorizing the district court to review this successive petition for habeas corpus relief. Phillips is, therefore, required to request leave and obtain an order from the Fifth Circuit authorizing the district court to review these claims.
II. RECOMMENDATION
Phillips's ineffective-assistance-of-counsel claim should be dismissed. The remainder of his petition should be dismissed without prejudice to his right to file a motion for leave to file a successive petition in the United States Court of Appeals for the Fifth Circuit. 28 U.S.C. § 2244(b)(3)(A).
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations until August 28, 2002. Failure to file written objections within the specified time shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Pursuant to 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until August 28, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.