IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LAWRENCE GENE PAGE, §

Petitioner, §

§

v. § 3:03-CV-2741-G

§ (consolidated with

NATHANIEL QUARTERMAN, Director, § 3:03-CV-2743-G)

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court in

implementation thereof, Petitioner’s motions for leave to file second habeas petition filed on

February 5, 2010, in each of the above cases has been referred to the United States Magistrate

Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

On August 3, 2004, the District Court accepted the findings and recommendation of the

undersigned magistrate judge and entered judgment denying and dismissing this consolidated

habeas action as time barred with respect to Petitioner’s conviction in No. F01-0876-MN, and on

the merits with respect to his conviction in No. F01-0877-MN. Petitioner appealed and the Fifth

Circuit denied a certificate of appealability. See Appeal Nos. 04-11024, 04-11198. Thereafter,

the Supreme Court denied petitions for writ of certiorari. Id. 

Petitioner now seeks leave to file successive habeas petitions challenging each of his

underlying criminal convictions. The District Court lacks jurisdiction over a motion for leave to

file a successive habeas corpus petition. Such a motion must be filed in the United States Court

 

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of Appeals for the Fifth Circuit. See 28 U.S.C. § 2244(b)(3)(A) ( “Before a second or successive

application . . . is filed in the district court, the applicant shall move in the appropriate court of

appeals for an order authorizing the district court to consider the application.”); United States v.

Key, 205 F.3d 773, 774 (5th Cir. 2000) (holding that § 2244(b)(3)(A) constitutes a bar to a

district court’s jurisdiction to consider a successive habeas petition unless the Fifth Circuit has

granted the petitioner permission to file such a petition). Consequently, the motions for leave to

file should be dismissed for want of jurisdiction, but without prejudice to Petitioner seeking

relief in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). 

See In re Epps, 127 F.3d 364, 365 (5th Cir. 1997) (setting out the requirements for filing a

motion for authorization to file a successive habeas petition in the Fifth Circuit Court of

Appeals).

RECOMMENDATION:

For the foregoing reasons it is recommended that the motions for leave to file a

successive habeas corpus petition (Doc. #31 in No. 3:03cv2741-G, and Doc. # 14 in No.

3:03cv2743-G) be DISMISSED for want of jurisdiction, but without prejudice to Petitioner’s

right to file a motion for leave to file a second or successive § 2254 petition in the United States

Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).

It is further recommended that the Clerk be directed to open for administrative purposes a

new habeas corpus action (nature of suit 530 directly assigned to the same district judge and 

 

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magistrate judge) and to close the same on the basis of the district court’s order. 

Signed this 9th day of February, 2010.

_____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

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. 

 

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