IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JOHN W. BANOS §

VS. § CIVIL ACTION NO. 1:23cv306

DIRECTOR, TDCJ-CID §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner John W. Banos, an inmate confined within the Texas Department of Criminal

Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of error

coram nobis. This matter was referred to the undersigned United State Magistrate Judge pursuant

to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition

of the case.

 Factual Background

Petitioner is challenging convictions for unauthorized use of a motor vehicle, aggravated

kidnaping and aggravated sexual assault. As petitioner is still in custody as a result of these

convictions, he may not challenge him via a writ of error coram nobis. Jimenez v. Trominski, 91

F.3d 767, 768 (5th Cir. 1996) (writ of coram nobis is only available to a person who is not in

custody). As petitioner is challenging his confinement pursuant to a state court judgment, his filing

should be treated as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 

Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Lay v. Tanner, 569 F. App’x 214, 215 (5th Cir. 

2014). However, as explained below, the court lacks jurisdiction over such a petition as it would

be successive.

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Title 28 U.S.C. § 2244(b) provides that a district court may not entertain a second or

successive petition for writ of habeas corpus unless the governing court of appeals has granted the

petitioner permission to proceed with a successive petition. The portion of the Act governing when

permission should be granted by the court of appeals, which is codified at 28 U.S.C. § 2244(b),

provides:

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

Section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas application . . . that was not

presented in a prior application shall be dismissed unless-

(A) the applicant shows that the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court that was

previously unavailable; or

(B)(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 fact finder would have found the applicant guilty of the underlying

offense.

The issue of whether a habeas corpus petition is successive may be raised by the district court sua

sponte. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). 

Petitioner previously filed a petition for writ of habeas corpus challenging the same

convictions. That petition was denied on the merits. Banos v. Johnson, 3:96cv2217 (N.D. Tex. Feb.

12, 1997). To the extent the current filing is construed as a petition for writ of habeas corpus, it is

therefore successive. 

Petitioner’s petition for writ of error coram nobis does not entitle him to relief. Further, as

a prior petition challenging the same convictions was previously denied, and as petitioner does not

state the United States Court of Appeals for the Fifth Circuit has granted him leave to file a

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successive petition, this court would lack jurisdiction over a petition for writ of habeas corpus. This

petition should therefore be dismissed.

Recommendation

This petition for writ of error coram nobis should be dismissed without prejudice.

Objections

Objections must be (1) specific, (2) in writing, and (3) served and filed within 14 days after

being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED.R.CIV. P. 6(a), 6(b) and 72(b).

A party’s failure to object bars that party from (1) entitlement to de novo review by a district

judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual

findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass’n.,

79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 18th day of August, 2023.

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