Magee v. Soto

Filing 5

ORDERED that Ruchell Cinque Magees Section 2254 petition be construed in part as a motion forauthorization for the District Court to consider the second or successive claims raised therein. ORDERED that petition is transferred to the U.S. Court of Appeals - 5th Circuit to determine if petitioner is allowed to file successive habeas petition in this court. Signed by Judge Carl Barbier on 8/27/14.(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RUCHELL CINQUE MAGEE

CIVIL ACTION

VERSUS

NO. 14-1297

J. SOTO, WARDEN

SECTION “J”(2)

TRANSFER ORDER
The petitioner, Ruchell Cinque Magee, filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 in which he challenges the constitutionality of his 1956 state court conviction and
sentence in Washington Parish for attempted aggravated rape. This was completed and petitioner
is now serving a sentence imposed in 1975 for a conviction in California. He alleges that the
Louisiana Supreme Court denied him post-conviction relief in conflict with federal constitutional
law on the right to be heard on the claim of actual innocence.
A review of this Court’s records reflects that Magee filed three prior petitions for issuance
of a writ of habeas corpus under Section 2254 which were related to the same conviction.1
In his first petition, Magee v. Ayers, Civ. Action 99-0220“D”(6), petitioner raised the
following grounds for relief: (1) The Louisiana Supreme Court erred in failing to hold a hearing of
the facts in dispute regarding the exclusion of all blacks from the grand jury. (2) He was a minor
prosecuted as an adult. (3) The Louisiana Supreme Court abused its discretion in failing to hold a
hearing on the suppression of evidence in dispute. (4) The Louisiana Supreme Court failed to hold
a hearing on deprivation of his rights to testify and produce witnesses in his defense. (5) Petitioner

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The Court’s records reveal that petitioner filed another habeas petition under 28 U.S.C. § 2254 in this court,
challenging his 1975 California kidnapping conviction, Civ. Action 94-2676“D”(6). The petition was transferred to the
United States District Court for the Northern District of California on September 9, 1994.

was subjected to false arrest. (6) Petitioner was denied a fair and impartial trial and effective
assistance of counsel.
The Court dismissed the petition with prejudice on April 8, 1999, for lack of subject matter
jurisdiction and, alternatively, as procedurally barred from federal habeas review. Civ. Action 990220, Rec. Doc. Nos. 7, 8. The United States Fifth Circuit Court of Appeals denied issuance of a
certificate of appealability on January 24, 2000. Civ. Action 99-0220, Rec. Doc. No. 20. The
United States Supreme Court also denied issuance of a writ of certiorari on October 10, 2000.
Magee v. Ayers, 531 U.S. 933 (2000).
Magee filed a second habeas petition, Magee v. Smith, Civ. Action 11-1603“J”(6), raising
the following ground for relief:
Newly discovered evidence of petitioner’s actual innocence has been ignored by the
courts. He raises claims of false arrest without probable cause, being prosecuted
improperly in light of his age, denial of the right to testify and to produce witnesses
on his behalf, racial discrimination in selecting the jury, prosecutorial misconduct,
and ineffective assistance of counsel.
The Court transferred the petition to the United States Fifth Circuit for consideration as a
motion for authorization to file a second or successive petition under 28 U.S.C. § 2244(b). Civ.
Action 11-1603, Rec. Doc. No. 4. The Fifth Circuit denied the motion for authorization on October
5, 2011. Civ. Action 11-1603, Rec. Doc. No. 7.
Magee’s third petition, Magee v. Soto, Civ. Action 14-1145“J”(2), was filed by the clerk of
court on May 19, 2014. Magee raised two grounds for relief:
1)

2)

The Louisiana Supreme Court erred by denying relief without a hearing in
conflict with Supreme Court recent decisions governing innocence and
prosecutions against minors.
The Louisiana Supreme Court failed to consider evidence of actual innocence
raised before the Louisiana Pardon Board on April 12, 2013: (a) he was a
minor and the victim of vindictive prosecution because the his white accuser
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was allowed to testify; (b) he was without counsel for his defense; (c) he was
referred to as the “nigger” at trial; (d) his accuser was allowed to give false
and conflicting testimony about the suggestive identification process.
The Court transferred the petition to the United States Fifth Circuit on May 29, 2014, for
consideration as a request to file a second or successive petition pursuant to 28 U.S.C. § 2244(b) and
28 U.S.C. § 1631. Civ. Action 14-1145“J”(2), Rec. Doc. No. 4. The matter is still pending before
the Fifth Circuit.
The instant petition also is considered a prohibited second or successive petition under 28
U.S.C. § 2244. Before it can be addressed by this Court, the petitioner must obtain authorization
to file a second or successive petition from the United States Fifth Circuit Court of Appeals by
making a prima facie showing to that court of one of the following exceptions:
1)

2)

the claim relies on a new rule of law, made retroactive to cases on collateral
review by the United States Supreme Court, that was previously unavailable;
or
(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 the constitutional error, no reasonable factfinder would
have found the petitioner guilty of the underlying offense.

28 U.S.C. § 2244(b)(3)(A).
Until such time as petitioner obtains authorization from the United States Fifth Circuit Court
of Appeals, this Court is without jurisdiction to proceed. Accordingly,
IT IS ORDERED that Magee’s Section 2254 petition be construed in part as a motion for
authorization for the District Court to consider the second or successive claims raised therein.
IT IS FURTHER ORDERED that the petition be and hereby is TRANSFERRED to the
United States Fifth Circuit Court of Appeals under the authority of 28 U.S.C. § 1631 for that Court

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to determine whether petitioner is authorized under 28 U.S.C. § 2244(b) to file the instant habeas
corpus petition in this District Court.
New Orleans, Louisiana, this 27th day of August, 2014.

____________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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