Lucas v. Cain et al

Filing 2

TRANSFER ORDER: The 1 Petition for Writ of Habeas Corpus be construed in part as a motion for authorization for the district court to consider the successive claims raised herein. FURTHER ORDERED that the petition be transferred to USCA for that court to determine whether petitioner is authorized under 28 USC 2244(b) to file the instant habeas corpus petition in this district. Signed by Judge James J. Brady on 2/10/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LUCAS RODDY (#458846)
VERSUS

CIVIL ACTION

BURL CAIN, ET AL

NUMBER 11-730-JJB-DLD
TRANSFER ORDER

Petitioner, Lucas Roddy, has filed a petition for writ of
habeas

corpus

challenging

pursuant

the

to

28

U.S.C.

constitutionality

of

§

2254
his

in

which

2002

state

he

is

court

conviction and sentence on charges of second degree murder.
A review of this court’s records showed that petitioner has
filed a prior petition for writ of habeas corpus related to this
same conviction and sentence: Lucas J. Roddy v. Burl Cain, CV 10800-RET-CN (M.D. La.), currently on appeal before the 5th Cir., no.
11-30728.
The petition presently before the court is considered to be a
successive petition as described by 28 U.S.C. § 2244.

In order to

overcome the prohibition against the filing of a successive claim
under that section, the petitioner must establish one of the
following exceptions:
1)

2)

USCA

the claim relies on a new rule of constitutional
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)(2)(A), (B).
Before the petition can be considered on the merits by this
court, the petitioner must obtain authorization to file this
successive petition from the United States Court of Appeals for the
Fifth Circuit by making a prima facie showing of the above listed
requirements to that appellate court as required by 28 U.S.C. §
2244(b)(3)(A).

Until

such

time

as

petitioner

obtains

said

authorization, this court is without jurisdiction to proceed.
Accordingly,
IT IS ORDERED that the petition be construed in part as a
motion for authorization for the district court to consider the
successive claims raised herein.
IT IS FURTHER ORDERED that the petition be and hereby is
transferred to the United States Court of Appeals for the Fifth
Circuit under the authority of 28 U.S.C. § 1631 for that court to
determine whether petitioner is authorized under 28 U.S.C. §
2244(b) to file the instant habeas corpus petition in this district

court.

See, In re: Tony Epps, 127 F.3d 364 (5th Cir. 1997).

Baton Rouge, Louisiana, February 10, 2012.

JAMES J. BRADY, JUDGE
MIDDLE DISTRICT OF LOUISIANA