IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES L. HOWARD, 677712, )

Petitioner, )

)

v. ) No. 3:00-CV-0895-M

)

WILLIAM STEPHENS, Director, Texas )

Dept. 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), implemented by an Order of the Court, this

case has been referred to the United States Magistrate Judge. The findings, conclusions and

recommendation of the Magistrate Judge are as follows:

Type of Case: Petitioner has filed a motion for leave to file a second or successive petition 

for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is a state prisoner, currently incarcerated in the Texas Department of

Criminal Justice - Correctional Institutions Division (“TDCJ-CID”). Respondent is William

Stephens, Director of the TDCJ-CID. 

Statement of the Case: On January 4, 1994, Petitioner was convicted of aggravated sexual

assault. On February 12, 1997, the Fifth District Court of Appeals affirmed the conviction and

sentence. Howard v. State of Texas, No. 05-95-01428-CR (Tex. App. – Dallas, Feb. 12, 1997, pet.

ref’d). 

Findings, Conclusions and Recommendation

of the United States Magistrate Judge

 

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On April 25, 2000, Petitioner filed a federal § 2254 petition in this case. On March 30, 2001, 

the district court dismissed the petition as barred by the statute of limitations. On December 11,

2001, the Fifth Circuit Court of Appeals denied a certificate of appealability.

On November 13, 2013, Petitioner filed the instant motion for leave to file a second or

successive § 2254 petition. 

Discussion: The Antiterrorism and Effective Death Penalty Act of 1996 limits the

circumstances under which a federal prisoner may file a second or successive motion for postconviction relief. ANTITERRORISMANDEFFECTIVEDEATHPENALTYACT, Publ. L. 104-132, 110 Stat.

1214 (1996). A defendant must show that the successive motion is based on: (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 Petitioner files his application

in this Court, a three-judge panel of the Fifth Circuit must determine whether the application makes

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

The Fifth Circuit has not issued an order authorizing this Court to consider the successive

motion. Petitioner must obtain such an order before another petition for habeas relief under 

§ 2254 is filed.

RECOMMENDATION:

For the foregoing reasons, the Court hereby recommends that the instant motion be

construed as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and that the

petition be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant

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of the United States Magistrate Judge -2-

 

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to In re Epps, 127 F.3d 364, 365 (5 Cir. 1997). The Court further recommends that the Clerk of th

Court be directed to open a new civil action pursuant to § 2254 (nature of suit 530) for statistical

purposes

Signed this 15 day of January, 2014. th

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

Findings, Conclusions and Recommendation

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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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