1

The indictment in this case alleged four (4) enhancement paragraphs for past felony convictions. Consequently,

petitioner was sentenced as a habitual third offender.

HAB54\R&R\CAIN-420.SUCC:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

 

SHANE McCLAINE CAIN, §

§

Petitioner, §

§

v. § 2:03-CV-0420

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS SUCCESSIVE PETITION

Petitioner SHANE McCLAINE CAIN, an inmate confined at the TDCJ-CID Bill Clements

Unit, has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28

U.S.C. § 2241. By his habeas application, petitioner challenges the execution of his 25-year

sentence assessed on November 20, 1989 upon his conviction for the felony offense of theft over

$750 out of the 264th Judicial District Court of Bell County, Texas. See State v. Cain, Cause No.

38,167.1 Specifically, petitioner appears to argue he has been denied his right to be “released” to

mandatory supervision on his sentence, and that his guilty plea to the theft offense has been

rendered involuntary because by failing to “release” petitioner to mandatory supervision on this

sentence, the State has violated the plea agreement with petitioner. For the reasons hereinafter

 

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2

In 1989, petitioner was charged, and was subsequently convicted, of the offense of threats against the President and

successors to the President in the United States District Court for the Western District of Texas, Waco Division. United States v.

Cain, 6:1989-CR-0107. 

3

Petitioner has filed twenty-four (24) state habeas applications in all. See In re Cain, Nos. 18,018-01 to -24.

HAB54\R&R\CAIN-420.SUCC:2 2

expressed, the undersigned United States Magistrate Judge recommends petitioner's application be

DISMISSED.

I.

ADDITIONAL CRIMINAL PROCEEDINGS

On May 18, 1992, petitioner was convicted, pursuant to a guilty plea, of two counts of

retaliation out of the 25th Judicial District Court of Guadalupe County, Texas. See State v. Cain,

Cause No. 91-0984-CR. Pursuant to a plea agreement, petitioner was sentenced to ninety-nine (99)

years confinement to begin after his 25-year sentence in Cause No. 38,167 ceased to operate.

On April 12, 1993, petitioner was convicted, pursuant to a guilty plea, of the offense of

possession of a deadly weapon in a penal institution out of Houston County, Texas. See State v.

Cain, Cause No. 14,288-CR. Petitioner was sentenced to thirty-five (35) years confinement to run

consecutively after serving his 99-year sentence in Cause No. 91-0984-CR.2

Petitioner has unsuccessfully challenged his theft, retaliation, and possession of a deadly

weapon convictions in several state applications for habeas corpus.3 He has also unsuccessfully

challenged the execution of his 25-year, 35-year and 99-year state sentences in numerous state

habeas applications. 

II.

PRIOR FEDERAL COURT PROCEEDINGS

Petitioner has filed at least twelve (12) previous federal applications for writs of habeas

corpus, several of which challenge the execution of his sentences. On October 11, 2001, petitioner

 

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4

Title 2244(b) does not define what constitutes a “second or successive habeas corpus application.” Even so, the

undersigned finds the instant application for habeas relief is a “second or successive habeas corpus application” within the

meaning of section 2244(b) because it, like petitioner’s habeas application presented to the Abilene court, challenges the

execution of petitioner’s 25-year sentence assessed in Cause No. 38,167and, like other prior federal habeas applications,

challenges the conviction in Cause No. 38.167.

HAB54\R&R\CAIN-420.SUCC:2 3

filed with the United States District Court for the Northern District of Texas, Abilene Division, a

habeas application:

[C]hallenging the constitutionality of the operation and execution of his consecutive

sentences in cause no. 38,167 from Bell County, Texas and cause no. 9100984-CR

from Guadalupe County, Texas, specifically challenging:

(1) being denied the right to “cease to operate” petitioner’s first consecutive

“judgement and sentence” of 25 years in cause no. 38,167 on the date he

would have been “eligible” for release on parole in that sentence; and

(2) being denied the right to begin serving his second [state] sentence of 99 years

in cause no. 91-0984-CR on that date,

pursuant to the laws applicable to petitioner’s sentence.

Cain v. Cockrell, Cause No. 1:01-CV-189-C. On October 18, 2001, the Abilene Division Court,

taking judicial notice of at least eight (8) prior habeas petitions filed by petitioner, denied

petitioner’s federal habeas application because petitioner had not obtained authorization from the

United States Court of Appeals for the Fifth Circuit to file a successive petition. Petitioner appealed

the denial of his federal habeas application to the Fifth Circuit and, in that same cause, moved for an

order authorizing the district court to consider a 28 U.S.C. § 2241 petition. Cain v. Cockrell, Cause

No. 01-11458. On January 21, 2002, the Fifth Circuit denied petitioner’s motion for an order

authorizing the district court to consider a 28 U.S.C. § 2241 petition.

III.

FAILURE TO OBTAIN PERMISSION TO FILE SUCCESSIVE PETITION

Title 28 U.S.C. § 2244(b)(2) permits a district court to consider a claim presented in a

second or successive habeas application4

 that was not presented in a prior application if the claim

 

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(1) relies on a new rule of constitutional law made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or (2) is based on a factual predicate that could not

have been discovered previously through the exercise of due diligence and which, 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 petitioner

guilty of the underlying offense. In the instant case, however, it is not necessary to determine

whether this Court may consider petitioner’s claims presented in the current petition because

petitioner has failed to fulfill the preliminary procedural filing requirements pertaining to successive

petitions.

Title 28 U.S.C. § 2244(b)(3)(A) provides that before a second or successive application

permitted by section 2244(b)(2) 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.” 

Section 2244(b)(3)(A), which became effective April 24, 1996, creates a “gatekeeping” mechanism

at the appellate court for the consideration of second or successive applications in the district courts. 

Felker v. Turpin, 116 S.Ct. 2333, 2337 (1996). Specifically, it “transfers from the district court to

the court of appeals a screening function which would previously have been performed by the

district court.” Id., 116 S.Ct. at 2340. Permission may be obtained only by filing, with the

appropriate appellate court, a motion for authorization to file a successive habeas petition with the

district court. In re Epps, 127 F.3d 364 (5th Cir. 1997) (detailing the procedure for obtaining

authorization from the appellate court). The court of appeals may authorize the filing of a second or

successive application for habeas relief only if it determines the application makes a prima facie

showing that the application satisfies the requirements set forth in 28 U.S.C. § 2244(b)(2).

In the instant application, petitioner has not made any showing of having obtained

 

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HAB54\R&R\CAIN-420.SUCC:2 5

authorization from the Fifth Circuit Court of Appeals, the appropriate appellate court, to file this, a

successive federal habeas corpus application. In fact, petitioner has been denied permission from

the Fifth Circuit to file a successive application raising claims which are similar to, if not the same

as, the claims presented here. Because petitioner has failed to obtain the appropriate appellate court

permission to file a successive federal habeas petition with this Court as required by 28 U.S.C. §

2244(b)(3)(A), this Court has no authority to consider his request for relief. Consequently, it is the

undersigned’s opinion that this Court lacks subject matter jurisdiction to consider petitioner’s

application for a writ of habeas corpus and that petitioner’s federal application for habeas corpus

relief should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), (h)(3) of

the Federal Rules of Civil Procedure, and 28 U.S.C. § 2244(b)(3)(A).

IV.

MERITS

If this Court had subject matter jurisdiction to hear petitioner’s claims, such claims would be

denied on the merits. Petitioner’s claims, i.e., that he should be released to mandatory supervision

on his first sentence, and that his guilty plea has been rendered involuntary because he has not been

released in violation of the plea agreement he had with the State, were adjudicated on the merits in

the state court habeas proceedings. The state court’s adjudication did not result in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal law as

determined by the Supreme Court of the United States of America. Consequently, this Court would

not be authorized to grant federal habeas corpus relief.

Lastly, petitioner’s claims are based on challenges to the application of state law, and state

law claims are not cognizable on federal habeas review. Even so, it does not appear petitioner has

even shown a violation of state law. Petitioner has not shown he is entitled, under article 42.18 of

 

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HAB54\R&R\CAIN-420.SUCC:2 6

the Texas Code of Criminal Procedure (the mandatory supervision statute in effect at the time he

committed the theft offense in Cause No. 38,167) to mandatory supervised release, much less to

discharge, from his first sentence under state law. See Ex parte Kuester, 21 S.W.3d 264, 270

(Tex.Crim.App. 2000); Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex.Crim.App. 1998); Cain v. Texa

Board of Pardons and Paroles, 104 S.W.3d 215, 217 (Tex.App.–Austin 2003). It appears TDCJCID is properly calculating petitioner’s sentences. 

V.

RECOMMENDATION

It is the RECOMMENDATION of the Magistrate Judge to the United States District Judge

that the application writ of habeas corpus filed by petitioner SHANE McCLAIN CAIN be

DISMISSED for lack of subject matter jurisdiction. 

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner utilizing the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 7th day of April 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the file mark on the first page of this

recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the parties are

allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any objections must be

filed on or before the fourteenth (14th) day after this recommendation is filed. See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule

3.1, Local Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

 

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