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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RODNEY DEON BETHANY,

#1221925

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 Petitioner, §

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v. § No. 3:22-cv-02172-K (BT)

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UNITED STATES OF AMERICA, §

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 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Rodney Deon Bethany, a state prisoner, has filed a pro se petition for 

a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, 

the Court should transfer Bethany’s petition to the Fifth Circuit Court of 

Appeals as successive. 

I.

Bethany was convicted of robbery and aggravated robbery in the 

363rd Judicial District Court in Dallas, Texas on February 24, 2004. Pet. 1 

(ECF No. 4). Both of his second-degree felony convictions were enhanced, 

and he received a life sentence for each conviction. Id. The two sentences 

were ordered to run concurrently. Id. 

On February 6, 2009, Bethany filed his first petition for a writ of 

habeas corpus in this court. Bethany v. Thaler, Director TDCJ-CID, Case 

No. 3:09-cv-288-N. The magistrate judge recommended denying his 

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petition. Case No. 3:09-cv-288-N (ECF No. 16). On September 30, 2011, the 

District Court adopted the magistrate judge’s findings, conclusions, and 

recommendation, denied the petition with prejudice, and denied a 

certificate of appealability. Case No. 3:09-cv-288-N (ECF Nos. 18, 19). 

In his current petition, Bethany argues: (1) his trial attorney provided 

ineffective assistance of counsel and created an actual conflict-of-interest 

when he placed himself in a situation with divided loyalties; (2) his Due 

Process rights were violated when the State knowingly used false and 

misleading evidence; and (3) his Due Process rights were violated when the 

State withheld exculpatory and impeachment evidence. 

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

limits the circumstances under which a state prisoner may file a second or 

successive application for habeas relief in federal court. ANTITERRORISM AND 

EFFECTIVE DEATH PENALTY ACT, Publ. L. 104-132, 110 Stat. 1214 (1996). To 

raise a claim in a second or successive § 2254 petition, a prisoner must show: 

(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 fact finder 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. See 28 U.S.C. § 2244(b)(2). Before 

a petitioner files a successive petition in the District Court, a three-judge 

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panel of the Fifth Circuit must determine whether he makes the requisite 

prima facie showing. See 28 U.S.C. § 2244(b)(3)(A) and (B).

A petition is deemed successive when it raises a claim that was or 

could have been raised in an earlier petition, or otherwise is an abuse of writ. 

Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008). However, a 

second petition is not successive when the first petition was dismissed due 

to prematurity or for lack of exhaustion. Stewart v. Martinez-Villareal, 523 

U.S. 637, 643-46 (1998). This is so because “dismissal of a first habeas 

petition for technical procedural reasons would bar the prisoner from ever 

obtaining federal habeas review.” Id. at 645. 

Bethany’s first petition was denied with prejudice, and his new claims 

could have and should have been addressed in his first petition. Bethany fails 

to demonstrate that his claims were not available to him at that time he filed 

his first petition. See Hardemon, 516 F.3d at 275. Rather, it appears the 

alleged errors Bethany raises in his petition were previously known to him. 

For example, he argues that his trial attorney provided ineffective assistance 

of counsel and created a conflict-of-interest when he placed himself in a 

situation with divided loyalties. Specifically, Bethany claims that his trial 

attorney conspired with the prosecutor because he was angry Bethany would 

not take a plea deal “and [ ] swore to teach petitioner a lesson.” Mem. 13 

(ECF No. 5). There is no indication this claim was not available to him when 

he filed his first petition. 

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In sum, Bethany raises claims that could have and should have been 

addressed in his initial petition. Therefore, the pending petition is 

successive. The Fifth Circuit has not issued an order authorizing this Court 

to consider Bethany’s successive petition. Bethany must obtain such an 

order before he may file another petition for habeas relief under § 2254. 

III. 

The Court should TRANSFER Bethany’s petition for a writ of habeas 

corpus to the United States Court of Appeals for the Fifth Circuit pursuant 

to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). 

SO RECOMMENDED 

Signed October 6, 2022.

______________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE 

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report 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 report 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 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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