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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

HERRON KENT DUCKETT §

v. § CIVIL ACTION NO. 6:23cv394

DIRECTOR, TDCJ-CID §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Petitioner Herron Kent Duckett, proceeding pro se, filed this application for the writ of 

habeas corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. The petition 

has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C.

§636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of 

Duties to United States Magistrate Judges.

I. Background

Petitioner states that he was convicted of evading arrest with a vehicle in the 124th Judicial 

District Court of Gregg County, Texas, on April 2, 2014, receiving a sentence of 40 years in prison. 

He took a direct appeal and his conviction was affirmed by the 6th Judicial District Court of Appeals 

on March 3, 2015. Petitioner also states that he has previously sought both state and federal habeas 

corpus relief concerning this conviction.

Petitioner contends that he has discovered errors of constitutional dimensions which his 

attorney committed at trial. Specifically, Petitioner states that one juror had an implied bias against 

him due to her relationship to law enforcement officers, but counsel failed to ensure that she could 

be fair and impartial. Petitioner also complainsthat counsel used the wrong statute when asking for 

an instruction on lesser included offenses, causing him to be denied such an instruction.

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Court records confirm that Petitioner has previously sought federal habeas corpus relief 

concerning this same conviction. Duckett v. Director, TDCJ-CID, civil action no. 6:16cv1167 

(E.D.Tex., dismissed May 27, 2018), aff’d through denial of certificate of appealability,slip op. no. 

18-40589 (5th Cir., March 20, 2019).

II. Discussion

Title 28U.S.C. §2244(b)(3) providesthat before a second orsuccessive application permitted 

by this section is filed in the district court, the applicant shall move in the appropriate court of 

appeals for an order authorizing the district court to consider the application.

The on-line records of the Fifth Circuit Court of Appeals show that on March 29, 2021, 

Petitioner filed a motion for authorization to file a successive habeas corpus petition complaining 

that trial counsel failed to challenge a juror with relatives in law enforcement, but this motion was 

denied. In re Duckett, slip op. no. 21-40237 (5th Cir., April 9, 2021).

Until Petitioner receives permission from the Fifth Circuit Court of Appeals to file a 

successive petition, as set out in 28 U.S.C. §2244(b)(3), the district court lacks jurisdiction to 

consider his claims in a new habeas petition. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). 

Petitioner’s present habeas petition should be dismissed until such time as leave to file a successive 

petition is granted by the Fifth Circuit.

Certificate of Appealability

An appeal may not be taken to the court of appeals from a final order in a habeas corpus 

proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§2253(c)(1)(A). A district court may deny a certificate of appealability sua sponte because the 

district court that denies a petitioner relief is in the best position to determine whether the petitioner 

has made a substantial showing of a denial of a constitutional right on the issues before that court. 

Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

A certificate of appealability may only issue if the prisoner has made a substantial showing 

of the denial of a constitutional right. 28 U.S.C. §2253(c)(2); Buntion v. Lumpkin, 982 F.3d945,

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948 (5th Cir. 2020). In order to make that showing, the petitioner must demonstrate that jurists of 

reason could disagree with the district court’s resolution of his constitutional claims or thatjurists 

could conclude that the issues presented are adequate to deserve encouragement to proceed further.

Buck v. Davis, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017). The Fifth Circuit’s review is not a full 

consideration of the factual or legal bases adduced in support of the petitioner’s claims, butrather 

an examination of whether the district court’s decision was debatable. Buntion, 982 F.3d at 948, 

citing United States v. Davis, 971 F.3d 524, 530 (5th Cir. 2020).

When a certificate of appealability is denied because of a procedural default in statecourt, 

the applicant must further demonstrate that reasonable jurists could disagree with the procedural 

ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Petitioner has not shown, nor does the record indicate, that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling that the Court lacks 

jurisdiction because he has not obtained leave from the Fifth Circuit to file a successive petition. 

Consequently, he is not entitled to a certificate of appealability.

RECOMMENDATION

It is accordingly recommended that the above-styled application forthe writ of habeas corpus 

be dismissed with prejudice as to its refiling without permission from the Fifth Circuit, but without 

prejudice as to its refiling once such permission has been obtained. 28 U.S.C. §2244(b)(3). 

Petitioner may not refile this petition without first obtaining such leave, and the dismissal of this 

petition shall have no effect upon his right to seek permission from the Fifth Circuit to file a second 

orsuccessive petition or to pursue such a petition in the event that permission is granted. It isfurther 

recommended that a certificate of appealability be denied sua sponte, with such denial referring 

solely to an appeal of the decision in this case and likewise having no effect upon Petitioner’s right 

to seek permission from the Fifth Circuit to file a successive petition.

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A copy of these findings, conclusions and recommendationsshall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 

352 (5th Cir. 2017).

So ORDERED and SIGNED this 5th day of September, 2023.

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