IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-00470

Conference Calendar

 

IN RE: TONY EPPS,

 Movant.

---------------------

Transfer from the United States District Court 

for the Southern District of Texas

USDC No. H-96-2140

----------------------

October 22, 1997

Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges. 

BY THE COURT:

Tony Epps pleaded guilty and was convicted in state court of

burglary of a habitation, aggravated assault, and attempted capital

murder. He was sentenced to life in prison, and his convictions

and sentence were affirmed. Epps did not file a petition for

discretionary review. He did, however, file six habeas petitions

in state court challenging his convictions. One was not acted upon

because a direct appeal was pending. The other five were denied

without written order. 

Subsequently, Epps filed a habeas petition in federal district

court pursuant to 28 U.S.C. § 2254 challenging the same convictions

on the basis that trial counsel was ineffective because he failed

to investigate the facts, interview witnesses, and inform Epps that
2

a state witness would be unable to identify him. Respondent, the

State of Texas, filed a motion for summary judgment, and the

district court denied the habeas application and granted the motion

for summary judgment. Epps appealed and the district court

recommended denial of a certificate of probable cause (CPC). This

court denied a CPC. 

Epps then filed another habeas petition pursuant to § 2254.

He alleged that trial counsel misled him by erroneously informing

him that he could receive probation; insisting that he waive his

right to jury trial; and causing him to reject the state’s offer of

a 45-year sentence in exchange for a guilty plea. He also

contended that the trial court abused its discretion at sentencing

by admitting evidence that proved elements not charged in the

indictment. 

The district court has transferred the habeas petition to this

court for a determination whether the successive petition should be

allowed. See 28 U.S.C. §§ 2244(a) and (b)(3)(C). Epps has not

filed in this court a motion for authorization to file a successive

§ 2254 petition in district court. See 28 U.S.C. § 2244(b)(3)(A).

Two circuit courts have addressed the procedure to be used

when a district court transfers to the court of appeals a

successive petition for habeas corpus relief from a state prisoner

or a successive § 2255 motion from a federal prisoner. Those

circuit courts have directed their clerk’s offices to notify the
3

petitioner that a motion for authorization must be filed with the

court of appeals pursuant 28 U.S.C. § 2244(b)(3). The clerk’s

notice explains the substantive requirements of such a motion and

advises the prospective movant that (1) a motion pursuant to

§ 2244(b)(3) must be filed with the court of appeals within a

specified time from the date of the clerk’s notice and (2) failure

to do so timely will result in the entry of an order denying

authorization. See Coleman v. United States, 106 F.3d 339, 341

(10th Cir. 1997); Liriano v. United States, 95 F.3d 119, 123 (2d

Cir. 1997).

We find these procedures appropriate and accordingly adopt

them. The Clerk of this court is directed to notify Epps (1) that

he must file in this court a motion pursuant to § 2244(b)(3) within

30 days from the date of the Clerk’s notice, and (2) if he fails to

file such a motion within that time, an order will be entered

denying authorization. The Clerk shall further notify Epps that,

to be successful, his motion must make a prima facie showing that

either (1) his claim relies on a new rule of constitutional law

that was made retroactive by the Supreme Court and was previously

unavailable, or (2) the factual predicate for the claim could not

have been discovered previously through due diligence and the

underlying facts, if proved by clear and convincing evidence, would

be sufficient to establish that a reasonable trier of fact would

not have found the applicant guilty of the underlying offense. See
4

§§ 2244(b)(2) and (b)(3)(C). Finally, the Clerk shall instruct

Epps that the following documents should be attached to and filed

with his § 2244(b)(3) motion:

(1) A copy of the proposed § 2254 petition for which he is

requesting authorization to file in the district court;

(2) copies of (a) all previous § 2254 petitions challenging

the judgment or sentence received in any conviction for which he is

currently incarcerated; (b) all previous § 2241 petitions

challenging the terms and conditions of his imprisonment; and

(c) any complaint, regardless of title, that was subsequently

treated by the district court as a § 2254 motion or a § 2241

petition;

(3) all court opinions and orders disposing of the claims

advanced in (2), above; and

(4) all magistrate judge’s reports and recommendations issued

in connection with claims advanced in (2), above.

If, after due diligence and through no fault of his own, Epps

is unable to procure any of the documents described above, he

should submit, in lieu of such documents, an affidavit describing

the steps he has taken in efforts to procure them and explaining

why he was unsuccessful.

The thirty-day limit within which this court must address

Epps’s § 2244(b)(3) motion, see § 2244(b)(3)(D), will begin to run
5

when Epps’ response to the Clerk’s notice is received. See

Liriano, 95 F.3d at 123.