Opinion
Civil Action No. 4:02-CV-979-Y
December 5, 2002
ORDER OF SUMMARY DISMISSAL
In connection with the above-styled and numbered cause, this Court has reviewed the petition for habeas corpus by a person in state custody. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and pursuant to 28 U.S.C. § 2243, this habeas-corpus petition should be summarily dismissed. From the face of the petition, and from court records of which this Court can take judicial notice, the Court determines that this is a successive petition filed without the permission of the United States Court of Appeals for the Fifth Circuit as required by 28 U.S.C. § 2244(b)(2) and (b)(3)(A).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A § 2243 (West Supp. 2001) (emphasis added). Rule 4 of the Rules Governing Section 2254 cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2234 CASES, RULE 4 (emphasis added). See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (recognizing a district court's authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state).
Petitioner Samuel Thammavong raises challenges to his October 26, 1995, conviction for the offense of aggravated sexual assault of a child under 14 years of age in cause number 0520045D in the Criminal District Court Number One of Tarrant County, Texas. (Pet. ¶¶ 1-4.) Thammavong acknowledges that he has previously challenged this same conviction through a petition for writ of habeas corpus filed in this division styled Thammavong v. Johnson, cause number 4:98-CV-1086-G. (Pet. ¶ 21.) Thammavong has also previously filed a second petition for writ of habeas corpus which was dismissed as a successive petition filed without permission of the court of appeals in an order and judgment filed May 17, 2002. The first § 2254 petition was denied in a judgment filed November 19, 1999, and although Thammavong filed a notice of appeal, the court of appeals denied the request for certificate of appealability in a judgment entered as mandate on the docket of the district court on May 24, 2000.
The Court takes judicial notice of its own records in Thammavong v. Cockrell, 4:02-CV-447-Y.
The Court takes judicial notice of the records of this the Fort Worth division of this Court in Thammavong v. Johnson, No. 4:98-CV-1086-G.
See Id. The court of appeals assigned Thammavong's appeal cause number 99-11413.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a successive petition filed by a person attacking a state-court conviction under § 2254 must be certified by a panel of the appropriate court of appeals. These provisions require dismissal of a successive habeas proceeding unless specified conditions are met. The Supreme Court observed that this law "simply transfers 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)." Since Thammavong's present petition under 28 U.S.C. § 2254 was filed after the effective date of the AEDPA, this Court is without jurisdiction to consider the petition unless leave to file the same is granted by the court of appeals. Petitioner Thammavong has not obtained an order from the court of appeals authorizing the district court to review his successive petition for habeas-corpus relief. As a result, the Court finds that Thammavong's petition under 28 U.S.C. § 2254 must be dismissed with prejudice to his right to refile unless to any new petition he attaches an order from the court of appeals expressly authorizing the filing of a successive § 2254 petition.
See 28 U.S.C.A. § 2244(b)(3)(A) (West Supp. 2002)
See 28 U.S.C.A. § 2244(b)(2) (West Supp. 2002).
Felker v. Turpin, 518 U.S. 651, 664 (1996)
A review of the docket records of the Court of Appeals for the Fifth Circuit shows that a motion for authorization to file a successive petition was denied on August 6, 2002 in In re Thammavong, 02-10714; another motion for authorization is now pending in In re Thammavong, 02-11146.
It is therefore ORDERED that Samuel Thammavong's December 2, 2002, Petition For Writ of Habeas Corpus under 28 U.S.C. § 2254 be, and is hereby, DISMISSED WITH PREJUDICE to his right to re-file unless he attaches an order from the United States Court of Appeals for the Fifth Circuit expressly authorizing the filing of a successive petition.