Frank Figueroa v. Rick Thaler, Director
Filing
UNPUBLISHED OPINION ORDER FILED. [12-40966 Affirmed] Judge: PEH , Judge: PRO , Judge: LHS. Mandate pull date is 02/20/2013; denying motion to file successive petition filed by Appellant Mr. Frank Figueroa [7259886-2]; denying motion to appoint counsel filed by Appellant Mr. Frank Figueroa [7203576-2]; denying motion for certificate of appealability filed by Appellant Mr. Frank Figueroa [7203558-2] [12-40966]
Case: 12-40966
Document: 00512129888
Page: 1
Date Filed: 01/30/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 12-40966
Summary Calendar
January 30, 2013
Lyle W. Cayce
Clerk
FRANK FIGUEROA,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CV-374
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Frank Figueroa, Texas prisoner # 1485880, pled guilty to seven counts of
aggravated sexual assault of a child and three counts of indecency with a child
for which he was sentenced to 20 years of imprisonment on each count to run
concurrently. He previously sought and was denied relief under 28 U.S.C.
§ 2254. Following the denial of his motion for a certificate of appealability
(“COA”) by this court, he filed a postjudgment motion that the district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Date Filed: 01/30/2013
No. 12-40966
denied. The district court also dismissed without prejudice any successive
Section 2254 claims because Figueroa had not obtained authorization from this
court to raise them. Figueroa has filed in this court a motion for appointment
of counsel and a document styled as a motion for a COA and a brief in support.
His motion for a COA refers to the district court’s denial of his postjudgment
motion. Affording Figueroa’s COA brief the requisite liberal construction, it
appears that he is requesting authorization to file a successive Section 2254
application.
Figueroa refers to the denial of his postjudgment motion in his motion for
a COA but does not address the substance of that ruling in either his motion or
brief. Accordingly, Figueroa has abandoned any challenge to the denial of his
postjudgment motion, and his motion for a COA is denied. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Figueroa has failed to make the requisite prima facie showing for
authorization to file a successive Section 2254 application. See 28 U.S.C.
§ 2244(b)(3)(C). Figueroa faults counsel for failing to obtain expert analysis of
the victims’ physical injuries in light of his penile impairment. Because he was
aware of his penile impairment prior to abusing the victims, he has not
established that he could not have discovered the factual predicate of his claim
of ineffective assistance of counsel previously through the exercise of due
diligence. See § 2244(b)(2)(B)(i).
Figueroa also faults counsel for failing to discover the results of one
victim’s medical examination and the fact that the victims claimed to be living
at the wrong address when he abused them. He does not explain how the results
of the medical examination would have undermined that victim’s credibility.
Assuming arguendo evidence that the victims gave the wrong address would
have undermined their credibility, Figueroa has not demonstrated that no
reasonable factfinder would have found him guilty but for counsel’s alleged
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ineffectiveness. See § 2244(b)(2)(B)(ii). Accordingly, Figueroa’s alternative
motion for authorization to file a successive Section 2254 application is denied.
Figueroa’s motion for appointment of counsel is denied as the interests of
justice would not be served by an appointment. See Schwander v. Blackburn,
750 F.2d 494, 502-03 (5th Cir. 1985).
MOTION FOR A COA DENIED; MOTION FOR AUTHORIZATION TO
FILE A SUCCESSIVE § 2254 APPLICATION DENIED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.
3
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