GIVENS v. DRETKE, (N.D.Tex. 1997)

WILLIAM SANDERSON, 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 filed by a state prisoner pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is currently incarcerated at the Beto I Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Tennessee Colony, Texas. Respondent is the Director of TDCJ-CID. No process has been issued in this case.

Statement of the Case: Following his plea of not guilty, Petitioner was convicted of the offense of murder in Criminal District Court No. 1 of Dallas County, Texas, Cause No. F92-42215-KH. The jury assessed punishment at seventy years imprisonment. The Court of Appeals affirmed the conviction on August 25, 1995. Givens v. State, No. 05-92-02824-CR.

Petitioner, through retained counsel, filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction on the basis of insufficiency of the evidence. See Givens v. Johnson, 3:96-CV-2810-R (N.D. Tex., Dallas Div.). On November 18, 1997, the district court filed a memorandum opinion and order and entered judgment denying habeas relief on the merits. See Attachment I. Although Petitioner appealed, the Fifth Circuit dismissed the appeal for want of jurisdiction. Givens v. Johnson. No. 98-10270.

In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his murder conviction. He reasserts his claims of insufficiency of the evidence and adds four new claims of ineffective assistance of trial counsel. (Petition ¶ 20).

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). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (the AEDPA governs petitions filed after its effective date of April 24, 1996). Section 2244(b)(3)(A) 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 filed in the district court. See 28 U.S.C. § 2244(b)(3)(A); 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 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, 124 S.Ct. 287 (2003)

Petitioner presented his sufficiency of the evidence claims in his initial federal petition. Those claims are, therefore, successive under the AEDPA. See id (claim raised in prior petition is successive); United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000) (same).

The facts underlying the ineffective assistance of counsel claims, relating to counsel's performance at trial, occurred before Petitioner filed his initial federal habeas petition in 1996. These claims were, thus, available to him when he filed his initial federal petition and could have been raised in that petition, but Petitioner failed to do so. As noted previously "[u]nder the abuse-of-the-writ doctrine, a subsequent petition is `second or successive' when it raises a claim that was, or could have been, raised in an earlier petition." Crone. 324 F.3d at 837. That Petitioner's counsel in the 1996 case "would not file ineffective assistance against another attorney even in federal writ" (see petition at ¶ 22) does not cause the ineffective-assistance-of-counsel claims to become unavailable such that they could not have been raised in the prior petition. Moreover although the ineffectiveness claims may have been unexhausted at the time Petitioner filed his initial federal habeas petition, his failure to assert the claims in that petition rendered his later petition an abuse of the writ. See Crone, 324 F.3d at 838 (failure to bring jail time credit claim in initial federal petition, despite the fact that the claim was unexhausted and arose prior to prisoner filing his initial federal petition, rendered the second federal petition an abuse of the writ). Therefore, this court concludes that Petitioner's claims of ineffective assistance of counsel are "successive" under the AEDPA.

In light of the successive nature of the present petition, this court lacks jurisdiction to consider it unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file 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 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.

In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.