Ross v. Vannoy et al

Filing 4

ORDER: IT IS ORDERED that Donald Rosss Section 2254 petition is 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 U.S. Court of Appeals - 5th Circuit to determine whether Ross is authorized under 28 U.S.C. 2244(b) to file this petition. Signed by Judge Jane Triche Milazzo on 10/13/2020. (Attachments: # 1 Transmittal Letter)(am)

Case 2:20-cv-02223-JTM-KWR Document 4 Filed 10/13/20 Page 1 of 2

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD ROSS

CIVIL ACTION

VERSUS

NO. 20-2223

STATE OF LOUISIANA, ET AL.

SECTION “H”(4)

TRANSFER ORDER
Donald Ross filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
which he challenges the constitutionality of his 1989 Assumption Parish conviction for first degree
murder based on alleged newly discovered evidence of his actual innocence. The Court’s records
reflect that Ross previously filed two petitions under Section 2254 related to the same conviction.
In the first petition, Ross v. Cain, Civ. Action No. 97-0227“H,” Ross asserted that his trial
counsel was ineffective for failure to object to an improper jury instruction on principals. The
Court dismissed the petition with prejudice as meritless by Judgment entered April 1, 1998. Id.
at Rec. Doc. No. 9. The Judgment was affirmed on appeal by the United States Fifth Circuit Court
of Appeals on April 26, 1998. Id. at Rec. Doc. No. 16 (ref. App. No. 98-30330).
Ross filed a second federal habeas petition, Ross v. Cain, Civ. Action No. 03-3493“H,”
challenging the 1989 conviction on grounds of insufficient evidence, Brady violations, defective
indictment, and ineffective assistance of counsel. On May 27, 2004, the Court transferred the
matter to the Fifth Circuit to consider authorization under 28 U.S.C. § 2244(b)(3)(A) for Ross to
proceed with a second or successive petition. Id. at Rec. Doc. No. 3. The Fifth Circuit denied
the request on August 2, 2004. Id. at Rec. Doc. No. 5 (ref. App. No. 04-30532).
The instant petition is considered a prohibited second or successive petition under 28
U.S.C. § 2244. Before it can be addressed by this Court, Ross must obtain authorization to file a

Case 2:20-cv-02223-JTM-KWR Document 4 Filed 10/13/20 Page 2 of 2

second or successive petition from the Fifth Circuit 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).
The docket records of the Fifth Circuit do not reflect that Ross has sought or obtained
authorization to file this petition. Accord, App. No. 14-31300 (5th Cir. Jan. 14, 2015) (order
dismissing Ross’s motion to file a second or successive petition for failure to prosecute). Until
such time as Ross has done so, this Court is without jurisdiction to proceed. Accordingly,
IT IS ORDERED that Donald Ross’s Section 2254 petition is 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
to determine whether Ross is authorized under 28 U.S.C. § 2244(b) to file this petition.
New Orleans, Louisiana, this 13th day of October, 2020.

____________________________________
UNITED STATES DISTRICT JUDGE

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