Foxx v. The Attorney General of the State of Mississippi
ORDER transferring petition to U.S. Court of Appeals - 5th Circuit to determine if petitioner is allowed to file successive habeas petition in this court. Case CLOSED. Signed by District Judge Debra M. Brown on 1/20/17. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
THE ATTORNEY GENERAL OF THE
STATE OF MISSISSIPPI
ORDER TRANSFERRING CASE
Carlos Foxx has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. '
2254. Doc. #1. In his petition, Foxx challenges his twenty-year sentence for convictions of
attempted armed robbery, armed robbery, and manslaughter, in the Circuit Court of Coahoma
Specifically, Foxx raises the following grounds for relief: (1)
self-incrimination – 5th Amendment; (2) due process – 5th Amendment, challenge to unnecessary
procedures that occur at noncritical stages; (3) due process – 5th Amendment, involuntary
confessions; and (4) 6th Amendment, presence of counsel. Id. at 8–13.
Foxx has filed at least one other § 2254 petition concerning the same convictions which he
now seeks to challenge. See Foxx v. State of Mississippi, No. 4:14-CV-85 (N.D. Miss.) (Doc. #1).
On March 24, 2015, such petition was dismissed with prejudice under the doctrines of procedural
default and procedural bar. Id. (Doc. #19).
The Antiterrorism and Effective Death Penalty Act requires that before a second or
successive petition is filed in the district court, “the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.” 28 U.S.C. §
2244(b)(3)(A). As Foxx’s prior federal habeas corpus petition was dismissed as procedurally
defaulted, the present petition is successive:
[T]he dismissal of a federal habeas petition on the ground of state procedural default is a
determination on the merits for purposes of the successive petition doctrine. … [W]hile
a court, in dismissing a petition because of state procedural default (and a failure to
show cause and prejudice), is not determining the merits of the underlying claims, it is
making a determination on the merits that the underlying claims will not be considered
by a federal court for reasons of comity.
Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (emphases, alterations, and quotation
marks omitted). When a prisoner has not obtained the necessary order of authorization, rather
than dismissing the petition on that basis, the district court may transfer the petition “for a
determination [of] whether the successive petition should be allowed.” In re Epps, 127 F.3d 364,
365 (5th Cir. 1997).
The record shows that Foxx has not obtained an order authorizing him to pursue his
successive petition. Therefore, in the interest of justice and judicial economy, it is ORDERED
that the Clerk of the Court transfer to the Fifth Circuit Court of Appeals this petition and the entire
record of this case, in accordance with 28 U.S.C. § 2244(a) and (b)(3)(c); and In re Epps, 127 F.3d
at 365. Accordingly, this case is CLOSED.
SO ORDERED, this 20th day of January, 2017.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
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