IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

LARRY DARNELL PRICE, JR., § 

TDCJ No. 1779157, § 

 § 

Petitioner, § 

 § No. 3:22-cv-1279-B-BN 

V. § 

 § 

DIRECTOR, TDCJ-CID, § 

 § 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Larry Darnell Price, Jr., a Texas prisoner, was convicted of 

aggravated sexual assault and sentenced to life imprisonment. See State v. Price, No. 

F11-30771-P (203d Jud. Dist. Ct., Dall. Cnty., Tex. Apr. 6, 2012), aff’d as modified, 

No. 05-12-00552-CR, 2013 WL 6244542 (Tex. App. – Dallas Dec. 3, 2013, pet. ref’d). 

The Texas Court of Criminal Appeals denied his state habeas application without 

written order on the findings of the trial court. See Ex parte Price, No. WR- 81,918-01 

(Tex. Crim. App. June 16, 2014). And another judge of this Court denied Price’s initial 

28 U.S.C. § 2254 application for a writ of habeas corpus as to this conviction as 

procedurally barred in 2016. See Price v. Davis, No. 3:15-cv-1760-G-BF, 2016 WL 

6581245 (N.D. Tex. Oct. 12, 2016), rec. accepted, 2016 WL 6565855 (N.D. Tex. Nov. 2, 

2016). 

Price returns to federal court with a Notice of Motion to Vacate Judgment, 

directed at this state criminal judgment. See Dkt. No. 3. This filing was correctly 

construed as a Section 2254 petition. United States District Judge Jane J. Boyle 

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referred this federal habeas application to the undersigned United States magistrate 

judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of 

reference. And the undersigned enters these findings of fact, conclusions of law, and 

recommendation that, because the Court lacks jurisdiction to consider the successive 

petition, this action should be transferred to the United States Court of Appeals for 

the Fifth Circuit for appropriate action. 

“A state prisoner is entitled to one fair opportunity to seek federal habeas relief 

from his conviction. But he may not usually make a ‘second or successive habeas 

corpus application.’” Banister v. Davis, 140 S. Ct. 1698, 1702 (2020) (quoting 28 U.S.C. 

§ 2244(b)). As such, Section 2244 

lays out the requirements for filing successive petitions, serving as gatekeeper by preventing the repeated filing of habeas petitions that attack 

the prisoner’s underlying conviction. The statute does not define “second 

or successive,” however, and we have made clear that a petition is not 

“second or successive” merely because it is numerically second. 

... 

Later habeas petitions attacking the same judgment that was attacked 

in a prior petition tend to be labeled successive and must meet the 

standards for authorization under § 2244. In contrast, later habeas 

petitions attacking distinct judgments, administration of an inmate’s 

sentence, a defective habeas proceeding itself, or some other species of 

legal error – when the error arises after the underlying conviction – tend 

to be deemed non-successive. In essence, if the purported defect existed, 

or the claim was ripe, at the time of the prior petition, the later petition 

is likely to be held successive even if the legal basis for the attack was 

not. If, however, the purported defect did not arise, or the claim did not 

ripen, until after the conclusion of the previous petition, the later 

petition based on that defect may be non-successive. 

Leal Garcia v. Quarterman, 573 F.3d 214, 220, 222 (5th Cir. 2009) (footnotes omitted). 

Price previously exercised his “one fair opportunity to seek federal habeas 

relief from [this] conviction,” Banister, 140 S. Ct. at 1702. And his current petition 

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raises defects in this conviction that “existed ... at the time of the [first federal] 

petition ... even if the legal basis for the [current] attack[s were] not” known to Price 

when he filed the initial Section 2254 action. Leal Garcia, 573 F.3d at 222; see also 

Ramos v. Davis, 653 F. App’x 359, 364 (5th Cir. 2016) (per curiam) (“Where a 

petitioner seeks ‘to add a new ground for relief’ that was or could have been raised in 

an earlier federal habeas application” – including a claim of actual innocence – a court 

“must treat it as a second or successive habeas petition.” (quoting Williams v. Thaler, 

602 F.3d 291, 305 (5th Cir. 2010) (citing, in turn, Gonzalez v. Crosby, 545 U.S. 524, 

532 (2005)))).1

So, because the current claims are successive, Price’s failure to first obtain 

authorization from the Fifth Circuit under 28 U.S.C. § 2244(b)(3) deprives the district 

court of jurisdiction to consider the current Section 2254 application. See, e.g., Leal 

Garcia, 573 F.3d at 219 (“AEDPA requires a prisoner to obtain authorization from 

the federal appellate court in his circuit before he may file a ‘second or successive’ 

1 See also In re Will, 970 F.3d 536, 540 (5th Cir. 2020) (per curiam) (“So even 

though Will did not know of the State’s alleged Brady violation at the time he filed 

his first habeas petition, it is still subject to AEDPA’s statutory requirements for 

filing a successive petition.” (citation omitted)); Leal Garcia, 573 F.3d at 221 

(“[P]etitioners filing later habeas petitions [may not] assert that, because the 

evidence was not previously discovered or discoverable, the claim was unavailable; 

therefore, the later petition is non-successive. ... AEDPA forbids such a reading: 

Section 2244(b)(2)(B)(i) states that claims based on a factual predicate not 

previously discoverable are successive.”); Blackman v. Stephens, No. 3:13-cv-2073-PBN, 2015 WL 694953, at *6 (N.D. Tex. Feb. 18, 2015) (“Petitioner’s claims raised in 

her third federal habeas application attack purported defects that existed or claims 

that were ripe at the time of the prior applications even though Petitioner claims 

that the evidence to support and identify those claims was not previously discovered 

or discoverable.” (citing Leal Garcia, 573 F.3d at 221-22)). 

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petition for relief in federal district court. Without such authorization, the otherwisecognizant district court has no jurisdiction to entertain a successive § 2254 petition.” 

(footnotes omitted)). 

But, as this appears to be Price’s first successive federal habeas petition as to 

this state conviction, the Court should cure this want of jurisdiction by transferring 

this action to the Fifth Circuit for appropriate action. See 28 U.S.C. § 1631. 

Recommendation

The Court should transfer Larry Darnell Price, Jr.’s successive application for 

a writ of habeas corpus under 28 U.S.C. § 2254 to the United States Court of Appeals 

for the Fifth Circuit for appropriate action. 

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. CIV.

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. 

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United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: June 27, 2022 

_________________________________________ 

 DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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