IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CURTIS DOBBINS, JR., #687734, )

Petitioner, )

)

v. ) 3:05-CV-1159-L

)

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 in

implementation thereof, this case 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:

Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner

pursuant to 28 U.S.C. § 2254. 

Parties: Petitioner is currently incarcerated at the Hutchins State Jail of the Texas

Department of Criminal Justice -- Correctional Institutions Division (TDCJ-CID) in Dallas,

Texas. Respondent is the Director of the TDCJ-CID. No process has been issued in this case.

Statement of the Case: After a bench trial in the 208th District Court of Harris County,

Texas, in Cause No. 646440, Petitioner was convicted of unauthorized use of a motor vehicle. 

(Petition (Pet.) at 2-3). His conviction and sentence were affirmed on direct appeal. Dobbins v.

State, No. 13-93-499-CR (Tex. App. -- Corpus Christi Feb. 23, 1995, pet. ref’d). Petitioner

 

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subsequently filed a state habeas application, which the Texas Court of Criminal Appeals denied

without written order. Ex parte Dobbins, No. 35, 084-01 (Tex. Crim. App., Sept. 17, 1997). 

Petitioner also filed a prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254,

challenging the conviction at issue in this case on the ground that the sentence imposed

constituted cruel and unusual punishment in violation of the Eighth Amendment. See Dobbins v.

Johnson, Civil Action H-97-3158 (S.D. Tex., Houston Div.). On November 19, 1998, the court

denied and dismissed the habeas corpus petition with prejudice. Petitioner subsequently filed a

state habeas application, which was denied by the Court of Criminal Appeals. (Pet. at 3-4). 

In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his

conviction for unauthorized use of a motor vehicle. He asserts the following new grounds: (1)

his conviction was obtained in violation of the privilege against self incrimination, (2) the

prosecution failed to inform defendant of evidence favorable to him; (3) he was denied the

effective assistance of counsel; and (4) he was denied time credit on sentence for purposes of

determining his eligibility for mandatory supervision release. 

Findings and Conclusions: The instant 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 that the amendments to § 2244 "simply transfer from the

 

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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.),

cert. denied, 540 U.S. 910, 124 S.Ct. 287, 157 L.Ed.2d 200 (2003).

The facts underlying Petitioner’s first three claims, relate to events that occurred at trial,

long before Petitioner filed his first federal habeas petition in 1997. These claims were, thus,

available to him when he filed his initial federal petition and could have been raised in that

petition, but Petitioner failed to do so. As noted previously "[u]nder the abuse-of-the-writ

doctrine, a subsequent petition is 'second or successive' when it raises a claim that was, or could

have been, raised in an earlier petition." Crone, 324 F.3d at 837. 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 jail time credit claim in initial federal petition, despite the fact that

the claim was unexhausted and arose prior to prisoner filing his initial federal petition, rendered

the second federal petition an abuse of the writ). Therefore, the court concludes that Petitioner's

first three claims are "successive" under the AEDPA.

In his last ground, Petitioner challenges the denial of time credits for purposes of

qualifying for mandatory supervision release. He alleges that he should have been released on

mandatory supervision or parole in May 1995. (See Handwritten attachment to federal petition

at p.2 of denial of time credits on sentece). Since the facts underlying Petitioner’s last claim

 

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accrued before he filed his first federal habeas petition in 1997, the court concludes that this

claim is also successive within the meaning of 28 U.S.C. § 2244(b). See In re Cain, 137 F.3d

234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it “raises a 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 same. Hooker v. Sivley, 187 F.3d 680, 682

(5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, this petition

should be dismissed for want of jurisdiction. Such a 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

United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps,

127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a

successive habeas petition in the Fifth Circuit Court of Appeals).

 

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RECOMMENDATION:

For the foregoing reasons it is recommended that the petition for writ of habeas corpus 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).

The Clerk will mail a copy of this recommendation to Petitioner.

Signed this 28th day of June, 2005.

_____________________________________

PAUL D. STICKNEY

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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