Davis v. Morris, et al

Filing 10

USCA ORDER denying Motion for Authorization to file Successive 2254 Application. Signed by Clerk on 10/30/17. (jla)

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Case: 17-60446 Document: 00514215733 Page: 1 Date Filed: 10/30/2017 United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK LYLE W. CAYCE CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130 October 30, 2017 Mr. David Crews Northern District of Mississippi, Aberdeen United States District Court 301 W. Commerce Street Aberdeen, MS 39730 No. 17-60446 In re: Jeremy Davis USDC No. 1:17-CV-75 Dear Mr. Crews, Enclosed is a copy of the judgment issued as the mandate. Sincerely, LYLE W. CAYCE, Clerk By: _________________________ Shea E. Pertuit, Deputy Clerk 504-310-7666 cc w/encl: Mr. Jeremy Dale Davis Case: 17-60446 Document: 00514215734 Page: 1 Date Filed: 10/30/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-60446 In re: JEREMY DALE DAVIS, A True Copy Certified order issued Oct 30, 2017 Movant Clerk, U.S. Court of Appeals, Fifth Circuit Motion for an order authorizing the United States District Court for the Northern District of Mississippi, Aberdeen to consider a successive 28 U.S.C. § 2254 application Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURIAM: Jeremy Dale Davis, Mississippi prisoner # R0265, moves this court for authorization to file a successive 28 U.S.C. § 2254 application challenging his convictions of aggravated assault on a police officer, escape, burglary of a dwelling, and possession of a firearm by a convicted felon, for which he was sentenced to 59 years of imprisonment. If granted authorization, Davis would argue that his trial counsel was ineffective because of a direct conflict of interest and that his rights were violated by the trial court’s failure to conduct an inquiry into the conflict. Before Davis may file a successive § 2254 application, he must obtain an order from this court authorizing its consideration by the district court. See 28 U.S.C. § 2244(b)(3)(A). Davis must make a prima facie showing that his proposed application relies on either: (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was Case: 17-60446 Document: 00514215734 Page: 2 Date Filed: 10/30/2017 No. 17-60446 previously unavailable”; or (2) a factual predicate that “could not have been discovered previously through the exercise of due diligence.” § 2244(b)(2)(A), (2)(B)(i), & (3)(C). If the application relies on a newly discovered factual predicate, Davis must make a prima facie showing that “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 constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” § 2244(b)(2)(B)(ii). “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” § 2244(b)(1). The factual predicate for Davis’s claim that his trial counsel was ineffective due to an alleged conflict of interest was available at the time of voir dire during his trial and also was presented in his prior § 2254 application. Therefore, we will not consider it. See id. Davis has failed to make the required showing with regard to his remaining claim. Accordingly, IT IS ORDERED that the motion for authorization is DENIED. 2

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