IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVEN PAUL COOPER, #524906, )

Petitioner, )

)

v. ) 3:05-CV-0097-P

)

DOUGLAS DRETKE, Director, 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 filed

on June 14, 2005, Petitioner’s amended objection to the findings, conclusions and

recommendation filed on June 14, 2005, has been referred to the United States Magistrate Judge. 

The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his

signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

On May 24, 2005, the undersigned filed findings and conclusions recommending that the

habeas corpus petition pursuant to 28 U.S.C. § 2254 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). On June 9, 2005, the District Court adopted the recommendation over

Petitioner’s objection and filed its judgment dismissing this habeas action for want of

jurisdiction. The next day, Petitioner filed the amended objection presently referred to the

magistrate judge. Re-alleging the argument raised in his June 7, 2005 objection, Petitioner states

 

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1 Section 2244(b)(2)(B) reads as follows:

A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed

unless – 

(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.

2

that he learned of the factual predicate of his first ground for relief on March 10, 2004. As a

result, he contends that his first ground (e.g., that the retired visiting judge who presided at his

state trial had not renewed his official oath) falls within the exception to 28 U.S.C. §

2244(b)(2)(B)(i) and (ii).1

 

Assuming arguendo, as Petitioner alleges, that his first ground could not have been

discovered through the exercise of due diligence until March 10, 2004, that fact does not affect

whether this federal habeas petition or application is successive. A federal habeas application is

either successive or not. The Fifth Circuit has specifically determined that an application is

second or successive when it raises a claim that was or could have been raised in an earlier

petition. Orozco-Ramirez, 211 F.3d at 867; In re Cain, 137 F.3d 234, 235 (5th Cir.1998) (per

curiam). In a different, but analogous, context, the United States Supreme Court has recognized

the distinction between "application" and "claim". See Artuz v. Bennett, 531 U.S. 4, 9 (2000)

(discussing procedurally defaulted claims in conjunction with "properly filed" applications). "A

'mixed-application' that contains claims that could have been raised previously and claims that

could not have been so raised is nevertheless successive." Cooper v. Cockrell, No. 3:03-CV596-L, 2003 WL 21517824, at *2 (N.D.Tex. Apr.15, 2003); Hubbard v. Cockrell, No. 3:01-CV-

 

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2 Section 2244(b)(3)(A) reads as follows:

Before a second or successive application permitted by this section 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. 

28 U.S.C. § 2244(b)(3)(A).

3

1539-X, 2001 WL 1148274, at *2 (N.D.Tex. Sept.18, 2001).

Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file the present

application under 28 U.S.C. § 2244(b)(3)(A), this court lacks jurisdiction to consider the same. 

Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774

(5th Cir. 2000).2

 Accordingly, Petitioner’s amended objection to the findings, conclusions and

recommendation should be overruled. 

 

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4

RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court overrule Petitioner’s

amended objection, filed on June 10, 2005, to the findings, conclusions and recommendation. 

The Clerk will mail a copy of this recommendation to Petitioner Steven Paul Cooper,

#524906, Stiles Unit, 3060 FM 3514, Beaumont, Texas 77705.

Signed this 15th day of June, 2005.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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