Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LONNIE GENE RISPER, 506218, )

Petitioner, )

)

v. ) No. 3:05-CV-2488-H

) ECF

DOUGLAS DRETKE, Director TDCJ-CID, )

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: On February 1, 1989, Petitioner was convicted of burglary of a

habitation. State of Texas v. Lonnie Gene Risper, No. F-87-73032-LI (2nd Crim. Dist. Ct., Dallas

County, Tex., Feb. 1, 1989). Petitioner was sentenced to forty years confinement. On July 11,

1991, the Eleventh District Court of Appeals affirmed Petitioner’s conviction. On October 16,

1991, the Court of Criminal Appeals denied Petitioner’s petition for discretionary review. PDR

No. 982-91. 

 

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Petitioner filed four state applications for writ of habeas corpus. Ex parte Risper,

Application Nos. 8,517-02, -03, -04, -05. On May 23, 1990, the Court of Criminal Appeals

granted Petitioner’s first petition for writ of habeas corpus to the extent that he was allowed to

file an out-of-time appeal. The Court of Criminal Appeals denied Petitioner’s second and third

habeas petitions and dismissed Petitioner’s fourth habeas petition. 

On July 26, 2004, Petitioner filed a federal petition for writ of habeas corpus challenging

his parole revocation for the conviction that he challenges in the instant petition. Risper v.

Dretke, No. 3:04-CV-1613-P (N.D. Tex. July 26, 2004). On February 9, 2005, the Court

dismissed the petition as barred by the statute of limitations.

On December 15, 2005, Petitioner filed the instant petition. He argues his conviction is

unlawful because: (1) the Court of Criminal Appeals denied him the right to contest the allegedly

defective indictment; (2) the evidence was insufficient to sustain the conviction; (3) the jury

instructions denied Petition the right to a fair trial; (4) the trial court abused its discretion; and

(5) Petitioner received ineffective assistance of counsel. 

Discussion:

This petition is subject to the screening provisions set out in 28 U.S.C. § 2244(b)(3)(A),

as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That

section provides that 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); see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996)

(addressing a similar provision applicable to second or successive motions pursuant to 28

U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651,663-64 (1996), the Supreme Court observed

 

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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).”

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. 

2003) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1988)). A petition constitutes an abuse of

the writ “when it raises a claim that was, or could have been, raised in an earlier petition.” 

Crone, 324 F.3d at 837 (quoting James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)).

Petitioner’s claims relate to his 1988 trial. These claims arose before he filed his 2004

habeas petition challenging his parole revocation. These claims were therefore available to

Petitioner when he filed his first federal petition. Although these claims may have been

unexhausted at the time Petitioner filed his initial federal habeas petition, his failure to assert the

claims in that petition renders the present petition an abuse of the writ. See Crone, 324 F.3d at

838 (failure to bring time credit claim in initial federal petition attacking conviction rendered the

second federal petition an abuse of the writ, despite fact that the claim was unexhausted). The

Court therefore finds the petition is successive under the AEDPA. 

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

Circuit Court of Appeals authorizing this Court to consider the petition. 28 U.S.C. §

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

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

satisfies the requirements of 2244(b). 28 U.S.C. § 2244(b)(3)(C). To present a claim in a second

 

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or successive application, the petitioner must show the application 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. 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. 28 U.S.C. § 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.

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 In re Epps, 127 F.3d 364,

365 (5th Cir. 1997).

Signed this 27th day of March, 2006.

_____________________________________

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 (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 Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

 

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