Opinion
3:04-CV-1667-N.
November 19, 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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the James Allred Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Iowa Park, Texas. Respondent is the Director of the TDCJ-CID. No process has been issued in this case.
Statement of the Case: A jury convicted Petitioner of the felony offense of murder in Criminal District Court No. Two, Dallas County, Texas, in cause number F-9502453-QI. Punishment was assessed at forty years imprisonment and a $10,000 fine. Petitioner's conviction was affirmed on direct appeal. Roughley v. State, No. 05-95-01305-CR (Tex.App. — Dallas Jun. 10, 1998, pet. ref'd). Petitioner subsequently filed a motion for post-conviction DNA testing. The trial court denied the same, and the Court of Appeals affirmed the trial court's denial. See In re Roughley, 05-03-00049-CR (Tex.App. — Dallas Oct. 29, 2003).
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his murder conviction.See Roughley v. Johnson, 3:00-CV-2654-L (N.D. Tex., Dallas Div.). On September 28, 2001, the Court reversed its earlier decision adopting the findings, conclusions and recommendation of the magistrate judge and dismissed the petition as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d). On August 5, 2002, the Fifth Circuit affirmed the judgment of the District Court.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his murder conviction. He asserts the following new grounds: (1) actual innocence, (2) ineffective assistance of trial counsel, (3) ineffective assistance of appellate counsel, and (4) state's failure to disclose exculpatory biological evidence.
Findings and Conclusions: The instant petition is subject to the screening provisions set out in 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That section provides that a second or successive habeas petition pursuant to § 2254 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997);see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (addressing a similar provision applicable to second or successive motions pursuant to 28 U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the amendments to § 2244 "simply transfer from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)."
The facts underlying Petitioner's claims occurred before he filed his initial habeas petition in 2000. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). Petitioner argues that he could not have discovered these claims until he finally obtained a copy of his trial records in August 2003. (Petition at ¶ 22). It is well settled that a prisoner seeking collateral review of a conviction is not entitled to a free copy of records from his criminal trial. See also letter from Fred C. Daniel to Petitioner dated October 20, 2000, included as an exhibit to Roughley's petition. Moreover, a prisoner is not obligated to submit state court records with a § 2254 petition. It also is conceded that DNA testing was not performed on any tangible evidence prior to his criminal trial, thus there was no "Brady" material which could have been withheld. The absence of forensic evidence as well as the other claims asserted in the petition were known to Roughley at the time he filed his prior § 2254 petition. The court therefore finds the petition is successive within the meaning of 28 U.S.C. § 2244(b). See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it "raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ.").
Although the first § 2254 petition was dismissed as time barred, such a dismissal constituted an adjudication on the merits for purposes of the gate-keeping rules on second or successive petitions. See Villanueva v. United States, 346 F.3d 55, 61 (2nd Cir. 2003) (addressing issue in the context of a § 2255 motion); Donaldson v. United States, 2003 WL 22959502, No. 01-cv-1061 (N.D.N.Y. Oct. 27, 2003) (same); see also Anders v. Cockrell, 2003 WL 102615 at *2, 3:02cv2513-N (N.D. Tex. Jan. 08, 2003) (addressing issue in the context of a state habeas corpus petition).
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file the present petition, this court lacks jurisdiction to consider the same. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, this petition should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus be dismissed for want of jurisdiction, but without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).
The Clerk will mail a copy of this recommendation to Petitioner.