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)

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. [phone]
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