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Jurisdiction: Texas Northern District Court
Decision Date: 12/28/2016

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Garrett v. Davis Garrett v. Davis (N.D. Tex., 2016)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MICHAEL GARRETT, ID # 697364, Petitioner,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 3: 16-CV-3504-M (BH)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        December 28, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MICHAEL GARRETT, ID # 697364, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 3: 16-CV-3504-M (BH)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        December 28, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Referred to U.S. Magistrate Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Pursuant to Special Order 3-251 this habeas case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant filings and applicable law, this case should be transferred to the Fifth Circuit as a successive petition.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Michael Garrett (Petitioner) was convicted of aggravated sexual assault on February 24, 1995, in Cause No. F93-20131 in the 292nd Judicial District Court of Dallas County, Texas, and sentenced to life imprisonment. (doc. 3 at 2; see also www. tdcj. state. tx. us, search for petitioner). He unsuccessfully challenged this conviction through a federal habeas petition that was denied on its merits on July 28, 2015. See Garrett v. Stephens No. 3: 14-CV-2274-D (N.D. Tex. July 28, 2015). On December 27, 2016, he filed another federal habeas petition under 28 U.S.C. § 2254 again challenging the same conviction. (doc. 3. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. JURISDICTION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. " Kokkonen v. Guardian Life Ins. Co. of Am 511 U.S. 375 377 (1994) (citations omitted). They "must presume that a suit

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum. " Howery v. Allstate Ins. Co 243 F. 3d 912, 916 (5th Cir. 2001). They have "a continuing obligation to examine the basis for jurisdiction. " See MCG Inc. v. Great W. Energy Corp 896 F.2d 170 173 (5th Cir. 1990).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A district court cannot exercise jurisdiction over a second or successive § 2254 petition without authorization from the court of appeals. See 28 U.S.C. § 2244(b); Crone v. Cockrell 324 F. 3d 833, 836 (5th Cir. 2003). A petition is successive if it raises a claim that was or could have been raised in an earlier petition or otherwise constitutes an abuse of the writ. Hardemon v. Quarterman 516 F. 3d 272, 275 (5th Cir. 2008); Crone 324 F. 3d at 836-37. If it essentially represents a second attack on the same conviction raised in the earlier petition, a petition is successive. Hardemon 516 F. 3d at 275-76 (distinguishing Crone because "Crone involved multiple § 2254 petitions attacking a single judgment"). A second petition is not successive if the prior petition was dismissed due to prematurity or for lack of exhaustion, however. See Slack v. McDaniel 529U.S. 473, 487 (2000) (declining to construe an application as second or successive when it followed a previous dismissal due to a failure to exhaust state remedies); Stewart v. Martinez-Villareal 523 U.S. 637, 643-46 (1998) (declining to construe an application as second or successive when it followed a previous dismissal due to prematurity, and noting the similarities of such dismissal to one based upon a failure to exhaust state remedies). Otherwise, "dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review. " Stewart 523 U.S. at 645.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, Petitioner challenges the same conviction that he challenged in a prior federal petition that was denied on its merits. Under Hardemon and Crone he was required to present all available claims in that petition. A claim is available when it "could have been raised had the petitioner exercised due diligence. " Leonard v. Dretke No. 3: 02-CV-0578-H, 2004 WL 741286, at *3 (N.D. Tex. Apr. 5, 2004) (recommendation of Mag. J. ), adopted by 2004 WL 884578 (N.D. Tex. Apr. 20, 2004). The crucial question in determining availability is whether Petitioner knew or should have known through the exercise of due diligence the facts necessary to his current claims when he filed his prior federal petition challenging the same conviction challenged in this case.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Petitioner's federal petition is successive within the meaning of 28 U.S.C. § 2244(b) because it raises claims that were or could have been raised in his initial federal petition. 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).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Because the Fifth Circuit has not issued an order authorizing the district court to consider this successive petition for habeas relief, this Court lacks jurisdiction over this action.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The petition for writ of habeas corpus filed under 28 U.S.C. § 2254 should 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).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                SIGNED this 28th day of December 2016.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        IRMA CARRILLO RAMIREZ        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        INSTRUCTIONS FOR SERVICE AND
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        NOTICE OF RIGHT TO APPEAL/OBJECT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Ci v. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n 79 F. 3d 1415, 1417 (5th Cir. 1996).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        IRMA CARRILLO RAMIREZ        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Although Crone involved a challenge to petitioner's holding judgment of conviction followed by a challenge to post-conviction and post-sentence administrative actions that stripped him of good-time credits, Hardemon considered both challenges to be against "the same conviction".

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Although Crone involved a challenge to petitioner's holding judgment of conviction followed by a challenge to post-conviction and post-sentence administrative actions that stripped him of good-time credits, Hardemon considered both challenges to be against "the same conviction".

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