In re: Robert Preston, Jr.

Filing

REVISED UNPUBLISHED OPINION FILED. [7545702-2] [13-10606]

Case: 13-10606

Document: 00512505453

Page: 1

Date Filed: 01/20/2014

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
Fifth Circuit

FOR THE FIFTH CIRCUIT

FILED

_____________________

January 14, 2014

No. 13-10606
_____________________

Lyle W. Cayce
Clerk

In re: ROBERT PRESTON, JR.,
Movant
__________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-1995
__________________________
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM*:
Robert Preston, Jr., Texas prisoner # 326915, is currently serving a life
sentence for murder and aggravated robbery convictions. Preston was also
previously convicted of robbery by assault with a firearm in 1974 and felony
possession of a firearm in 1979. Beginning in 1989, Preston filed various pro
se habeas applications under 28 U.S.C § 2254. Preston’s most recent habeas
petition, filed in 2012, challenges his 1974 conviction for robbery by assault
with a firearm on due process and actual innocence grounds. On June 7,
2013, the district court transferred the petition to this court as an
unauthorized successive § 2254 application, without ruling on the merits or
procedural barriers that the government asserts bar Preston’s claim. Preston
*

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 R. 47.5, the court has determined that this opinion should not be published and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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then filed a motion with this court requesting the transfer of his case back to
the district court. The Clerk took no action, explaining that Preston must
seek from this court authorization to file a successive § 2254 application. 28
U.S.C. § 2244 (b)(3)(A).

Preston thereafter filed a motion that, with the

benefit of the liberal construction this court affords filings by pro se
petitioners, challenges whether his petition is in fact successive.
This court considers a petition successive if it represents “a second
attack by federal habeas petition on the same conviction.”

Hardemon v.

Quarterman 516 F.3d 272, 275-76 (5th Cir. 2008). Although an attempt to
bring another claim that could have been brought in a previous petition
qualifies as successive, an attempt to challenge another conviction which
could have previously been challenged does not qualify as successive. Id.
Rather, a petitioner is permitted, but not required, to challenge separate
convictions in a single § 2254 petition. Id.
The government opposes Preston’s current § 2254 petition, asserting
that he has previously challenged his 1974 conviction for robbery by assault
in prior § 2254 applications, and thus it is successive and should be dismissed
given that this court has not authorized Preston to file a successive
application. The government however, fails to provide documentary support
for the assertion that Preston has previously challenged his 1974 conviction
for robbery by assault with a firearm. The documents available to this court
do not support the government’s assertion that Preston has previously
challenged his 1974 robbery by assault conviction. Preston’s 1989 habeas
petition appears to have challenged a 1981 aggravated robbery conviction.
Likewise, the 1991 habeas petition indicates that Preston challenged his

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aggravated robbery conviction on a Sixth Amendment ineffective assistance of
counsel claim.

The available records do not support the government’s

contention that Preston has previously challenged his 1974 robbery
conviction, and thus Preston’s instant petition is not successive, as it
challenges a different conviction than those challenged in his previous § 2254
applications. See Hardemon 516 F.3d at 275.
Accordingly, it is ORDERED that Preston’s application to seek
authorization to file a successive petition is DISMISSED AS MOOT, given
that his petition is not successive within the meaning of § 2254. The case is
REMANDED to the district court for further proceedings.

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