Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAYMOND LANG, 486632, §

Petitioner, §

VS. § NO. 3-05-CV-942-K

§

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), 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:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for habeas corpus relief brought 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 Douglas

Dretke, Director of the TDCJ-CID. 

Statement of the Case: In 1998, Petitioner was convicted of aggravated sexual assault

and was sentenced to fifty years confinement. State v. Lang, No. F88-94072-RM (194th Jud.

Dist. Ct., June 13, 1998). This is Petitioner’s third federal habeas corpus petition challenging the

same conviction. The Court denied Petitioner’s first habeas petition on the merits. See Lang v.

Collins, 3:93-CV-839-D (N.D. Tex., June 2, 1994). Petitioner’s second petition was dismissed

 

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as successive. See Lang v. Director, 3:96-CV-837-P (N.D. Tex., May 28, 1996). The Court

finds this petition is likewise successive and should be dismissed. 

Discussion:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.

104-132, 110 Stat. 1217, there are limited circumstances under which a state prisoner may file a

second or successive application for habeas relief in federal court. A second or successive

habeas petition pursuant to § 2254 must be certified by a panel of the appropriate court of

appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997). 

In Felkin v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the

amendments to § 2244 “simply transfer from the district court to the court of appeals a screening

function which would previously have been performed by the district court as required by . . .

Rule 9(b).” 

Petitioner argues: (1) he is actually innocent; (2) the jury waiver form and the probable

cause warrant were defective; and (3) he received ineffective assistance of counsel. The Court

finds Petitioner previously raised the claims that he is actually innocent and that he received

ineffective assistance of counsel. The facts underlying Petitioner’s jury waiver and probable

cause claims occurred at or before Petitioner’s trial. These claims predated the filing of his first

and second federal habeas petitions. These claims were thus available to Petitioner when he

filed his initial federal petition. United States v. Orozco-Ramirez, 211 F.3d 862, 862 (5th Cir.

2000). They are therefore “second or successive” under the AEDPA. See In re Cain, 137 F.3d

234, 235 (5th Cir. 1998) (finding a subsequent petition is second or successive when it “raises a

 

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claim challenging the petitioner’s conviction or sentence that was or could have been raised in an

earlier petition, or otherwise constitutes an abuse of the writ.”). 

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

petition, this Court lacks jurisdiction to consider the petition. Hooker v. Sivley, 187 F.3d 680,

682 95th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). This petition should

therefore be dismissed for want of jurisdiction. Such dismissal, however, is without prejudice to

Petitioner’s right to file a motion for leave to file a second or successive § 2254 petition in the

Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d 364 (setting out

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, the Court recommends that the 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).

Signed this 25th day of May, 2005.

_____________________________________

PAUL D. STICKNEY

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 true copy of these findings, conclusions and

recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any

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

file 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. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any 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. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417

(5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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