1

 Because petitioner has previously filed a habeas petition under his full name, the Court includes it for record-keeping

purposes. The Clerk of the Court is directed to note petitioner’s full name on the docket sheet for this action. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES WILSON, ID # 521150, )

a.ka. Charles Clay Wilson,1 )

Petitioner, )

vs. ) No. 3:03-CV-3015-R

 )

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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

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

I. BACKGROUND

A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate

pursuant to 28 U.S.C. § 2254. 

B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of

Criminal Justice - Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke,

Director of TDCJ-CID. 

C. Procedural History: On September 6, 1989, petitioner was convicted of theft in Cause

No. F89-96891-VR, and received a forty-five year sentence. (Pet. Writ of Habeas Corpus (Pet.) ¶¶

2-5.) The court of appeals affirmed his conviction on September 20, 1990. (Id. ¶ 8.) The Texas

 

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 Although the Fifth Circuit Court of Appeals decided Orozco-Ramirez in the context of a motion to vacate under 28

U.S.C. § 2255, it also found it appropriate to rely upon cases decided under 28 U.S.C. § 2254 in reaching its decision.

See 211 F.3d at 864 n.4. In the present context, this Court also finds it appropriate to make no distinction between cases

2

Court of Criminal Appeals later denied a state petition for writ of habeas corpus. (Id. ¶ 11.) In

August 1996, petitioner filed a petition in federal court challenging the theft conviction on grounds

that he was convicted on a defective indictment; he received ineffective assistance of counsel when

his attorney failed to file a motion to quash; and the trial court failed to instruct the jury on the law

of the parties. See Wilson v. Johnson, No. 3:96-CV-2271-H (N.D. Tex.) (findings, conclusions, and

recommendation at 2-3). The Court denied the petition on January 25, 1999. Id. (Judgment). 

In November 2003, petitioner commenced the instant action again challenging the same

conviction. (See Pet. at 2, 9.) He claims that the State presented insufficient evidence to support

his conviction and that his sentence is illegal because the value of the property makes the crime a

misdemeanor. (Id. at 7.) 

Because petitioner has filed a previous federal petition, the Court must determine whether

the instant petition is a second or successive application within the meaning of 28 U.S.C. § 2244(b).

II. SECOND OR SUCCESSIVE APPLICATION

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214

(AEDPA) limits the circumstances under which a state prisoner may file a second or successive

application for habeas relief in federal court. In general, “a later petition is successive when it: 1)

raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised

in an earlier petition; or 2) otherwise constitutes an abuse of the writ.” Crone v. Cockrell, 324 F.3d

833, 836-37 (5th Cir.), cert. denied, 540 U.S. 910 (2003); accord United States v. Orozco-Ramirez, 211

F.3d 862, 867 (5th Cir. 2000).2

 A petition that is literally second or successive, however, is not

 

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decided under § 2255 and those under § 2254. 

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necessarily a second or successive application for purposes of the AEDPA. See Stewart v. MartinezVillareal, 523 U.S. 637, 643-46 (1998). In Stewart, the Supreme Court declined to construe an

application as second or successive when it followed a previous dismissal due to prematurity or lack

of exhaustion. Id. “To hold otherwise would mean that a dismissal of a first habeas petition for

technical procedural reasons would bar the prisoner from ever obtaining federal habeas review.” Id.

at 645. 

In this case, petitioner’s previous petition was not dismissed because of any prematurity or

lack of exhaustion. Under Orozco-Ramirez and Crone petitioner therefore was required to present

all available claims in his first federal petition: 

“The requirement that all available claims be presented in a prisoner’s first habeas

petition is consistent not only with the spirit of AEDPA’s restrictions on second and

successive habeas petitions, but also with the preexisting abuse of the writ principle.

The requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them

for a unitary presentation to the district court.” 

Orozco-Ramirez, 211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (1st Cir. 1997)).

The instant federal petition is successive within the meaning of 28 U.S.C. § 2244(b) because

it raises claims that could have been raised in his previous petition. When he filed his previous

petition he would have known the facts underlying the claims raised in the instant petition. There

is no reason petitioner could not have raised the instant claims in that petition. 

When a petition is second or successive, the petitioner must seek an order from the Fifth

Circuit Court of Appeals that authorizes this Court to consider the petition. See 28 U.S.C. §

2244(b)(3)(A). The Fifth Circuit “may authorize the filing of a second or successive application only

 

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if it determines that the application makes a prima facie showing that the application satisfies the

requirements of [§ 2244(b)].” Id. § 2244(b)(3)(C). To present a claim in a second or successive

application that was not presented in a prior application, the application must show that it 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 factfinder 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, that was previously unavailable. Id. § 2244(b)(2).

Before petitioner files his application in this Court, a three-judge panel of the Fifth Circuit Court of

Appeals must determine whether the application makes the requisite prima facie showing. See id.

§ 2244(b)(3)(A) and (B).

The Fifth Circuit has not issued an order authorizing the district court to consider this

successive application for habeas relief. Petitioner must obtain such an order before this case is filed.

III. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the

instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be TRANSFERRED

to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d

862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).

SIGNED this 28th day of April, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en

banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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