1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-00042 & 98-00045

IN RE: SHANE McCLAINE CAIN

,

.

Motions for leave to file successive habeas corpus petitions

March 5, 1998

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIUM:

IT IS ORDERED that Shane McClaine Cain’s petition to file

successive habeas corpus petition filed under cause number 98-00042

is CONSOLIDATED with Cain’s petition to file successive h abeas

corpus petition filed under cause number 98-00045.

Shane McClaine Cain (”C ain”), Texas state prisoner #537264,

has filed two motions with this court for leave to file successive

habeas corpus petitions in the district court. Under 28 U.S.C. §

2244(b), a habeas applicant seeking to file a successive petition

raising a new claim must apply for leave to do so from the court of

appeals.

W e must initially determine whether Cain’s petitions are2

“second or successive” so as to require permission to file from

this court. In cause number 98-00042, Cain states that he filed a

previous, unrelated federal habeas petition on October 14, 1997, in

which he challenged the good conduct time policy of the Texas

Department of Criminal Jus tice (“TDCJ”). Cain states that he

intends in the present petition to challenge a prison disciplinary

conviction wherein he lost thirty days’ good conduct time that

became final after he had filed his habeas petition challenging the

TDCJ good conduct time policy. In cause number 98-00045, Cain

states that he filed a previous, unrelated federal habeas petition

challenging his state-court retaliation conviction. He states that

he in tends, if granted permission, to file a habeas petition

challenging his prison disciplinary conviction for lying to an

officer, wherein he lost fifteen days’ good conduct time.

Cain’s motion presents an issue of first impression in this

circuit: whether a challenge to d i sciplinary proceedings that

became final subsequent to a prior habeas petition is a “second or

successive” petition which requires leave to file under 28 U.S.C.

§ 2244(b)(3). The relevant portion of the Antiterrorism and

Effective Death Penalty Act ( “AEDPA”), Pub.L. 104-132, 110 Stat.

1214 (1996), which is codified at 28 U.S.C. § 2244(b), provides:

( 1) A claim presented in a second or successi v e

habeas corpus application under section 2254 th at was

presented in a prior application shall be dismissed.

(2) A claim pres ented in a second or successive

habeas corpus application

. . . that was not presented in

a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a1 For example, section 2244(b)(2)(B) sheds considerable light on

the purpose of the AEDPA. Under this provision, a prisoner may

obtain federal review of a claim that newly discov ered evidence

shows that a “reasonable fact finder would [not] have found the

applicant guilty of the underlying offense

. 28 U.S.C. §

2244(b)(2)(B) (emphasis added). This provision thus strongly

supports t he conclusion that the AEDPA is designed primarily to

preclude petitions brought by prisoners seeking to escape the

consequences of their criminal behavior by challenging the

validity, imposition, or execution of their convictions or

sentences.

3

new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise of

due diligence; and (ii) the facts underlying the claim,

if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant

guilty of the underlying offense.

This provision, by curtailing the availability of “second or

successive habeas corpus application[ s],” seeks to prevent state

prisoners from abusing the writ of habeas corpus. See Felker v.

Turpin , 116 S. Ct. 2333, 2340 (1996).

The AEDPA, however, does not define what constitutes a “second

or successive” application. Nevertheless, a prisoner’s application

is not second or successive simply because it follows an earlier

federal petition. Instead, section 2244 -- one of the gatekeeping

provisions of the AEDPA -- was enacted primarily to preclude

prison ers from repeatedly attacking the validity of their

convictions and sentences. 1 Thus, a later petition is successive

when it: 1) raises a claim challenging the petitioner’s conviction4

or sentence that was or could have been raised in an earlier

petition; or 2) otherwise constitutes an abuse of the writ. C f.

Thomas v. Superintendent of the Woodbourne Correctional Facility

,

No. 97-3578, 1997 WL 837185, at *3 (2d Cir. Nov. 21, 1997)

(instructing a district court to determine whether a petition was

successive by considering “whether the prior petition was dismissed

with prejudice and whether the instant petition attacks the same

judgment that was attacked in the prior petition”); R eeves v.

Little

, 120 F.3d 1136, 1138 (10th Cir. 1997) (“In determining what

is a `second or successive’ motion under the statute, the circuits

which have reviewed this question use the `abuse of the writ’

standard.”) (citing In re Gasery , 116 F.3d 1051 (5th Cir. 1997));

see also Felker

, 116 S. Ct. at 2340 (“The new restrictions on

successive petitions constitute a modified res judicata rule.”);

Gasery , 116 F.3d at 1052 (applying the abuse of the writ standard

to determine that a petition that was refiled after being dismissed

for failure to exhaust state remedies was not a “second or

successive” petition).

Under this understanding of the Act, Cain’s current petitions

are not successive. In these petitions, Cain seeks relief from two

post-conviction and post-sentence administrative actions taken by

his prison board, contending that he was stripped of his good-time

credits without due process of law. Rather than attacking the

validity of his conviction or sentence, Cain’s petitions focus on

the administration of his sentence. Indeed, even if his claims are2 This co urt has held that a F ord claim

-— a claim that a

prisoner is incompetent to be executed —- is not an attack on the

validit y of a death sentence but that a petition raising a F ord

claim is nevertheless successive when the petitioner has previously

challenged the validity of his sentence. I n re Da vis , 121 F.3d

952, 955 (5th Cir. 1997). This decision is not controlling in this

case. There can be no question that a F ord claim is different than

an effort to recover lost good-time credits, for if successful, a

Ford claim prevents a state from executing an imposed sentence and

thus allows a criminal to escape indefinitely the consequences of

his atroci ous actions. Thus, unlike Cain’s petition, a petition

containing a Ford claim that is filed after the petitioner has

challenged the v alidity of his sentence in another application

strongly resembles the type of petition C ongress intended to

preclude as successive under the AEDPA.

3 Of cour se, the district court is free to consider whether

Cain’s characteriza t ion of his previous petitions is correct.

Thomas , 1997 WL 837185, at *3.

5 found to be meritorious and his good-time credits are restored,

Cain will continue to serve his sentence as it was imposed by the

trial court. 2

Moreover, Cain’s current petitions do not present claims that

were or could have been raised in his earlier petitions.

According to Cain, his earlier petitions, which were filed before

he was stripped of his good-time credits, challenged his criminal

c onviction and the constitutionality of the TDCJ’s good-time

credits program. 3 In contrast, Cain’s current applications focus

on the constitutionality of the procedures used to strip him of his

good-time credits. Further, given the timing of the board’s

decisions to strip him of these credits, Cain could not have

brought his due process claims in conjunction with his earlier

petitions. Accordingly, Cain’s current applications are not6

successive on the grounds that they constitute an abuse of the

writ.

Finally, the conclusion that Cain’s current petitions are not

successive is bolstered by the fact that a prisoner may seek

redress for the loss of good-time credits only through a habeas

petition. P reiser v. Rodriguez

, 411 U.S. 475 (1973). Under a

contrary holdin g, if a prisoner has previously filed a petition

challenging his conviction or sentence, any subsequent pet ition

challenging the administration of his sentence will necessarily be

barred by 28 U.S.C. § 2244(b), notwithstanding the possibility that

the events giving rise to this later application may not have

occurred until after the conclusion of the earlier habeas

proceeding. By definition, a prisoner challenging the

administration of his sentence will not be relying on newly

discovered evidence to show that a “reasonable fact finder would

[not] have found the applicant guilty of the underlyi ng offense.

§ 2244(b)(2)(B). Likewise, a petitioner like Cain will also be

unable to show that his claim “relies on a new rule of

constitutional law,” § 2244(b)(2)(A), because the due process

principles governing challenges to the procedures used to strip a

prisoner of good-time credits are well-established

. S ee, e.g.

,

Wolff v. McDonnell

, 418 U.S. 539 (1974). Consequently, we hold

that Congress did not intend for the interpretation of the phrase

“second or successive” to preclude federal district c ourts from

providing relief for a due process violation suffered by a prisoner7

who has previously filed a petition challenging the validity of his

petition or sentence, but is nevertheless not abusing the writ.

Therefore, Cain does not need this court’s permission to file

his two petitions because these petitions are not successive within

the meaning of 28 U.S.C. § 2244.

DENIED AS UNNECESSARY.