Lott v. Davis

Filing 6

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: 3 Petition for Writ of Habeas Corpus, filed by Rheashad Lamar Lott. The motion should be construed as a successive habeas petition under 28 U.S.C. § 2254, opened as a new case, and TRANSFERRED to the court of appeals. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 8/21/2017) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RHEASHAD LAMAR LOTT,
ID #1596571,
Petitioner,
vs.
LORIE DAVIS,1 Director,
Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent.

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No. 3:13-CV-2699-M (BH)

Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to Special Order 3-251, this habeas case has been automatically referred for
findings, conclusions, and recommendation. Before the Court is the petitioner’s Motion for Leave
to File Motion for Summary Judgment, received on July 25, 2017 (doc. 38). The motion should be
construed as a successive habeas petition under 28 U.S.C. § 2254, opened as a new case, and
TRANSFERRED to the court of appeals.
I. BACKGROUND
Rheashad Lamar Lott (Petitioner) filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254 on May 20, 2013, challenging his 2009 conviction and seventy-year sentence in Cause No.
F09-00780-I in Dallas County, Texas, for engaging in organized criminal activity by committing
aggravated assault with intent to establish, maintain, or participate as a member of a criminal street
gang. (Doc. 1.) His federal habeas petition was denied on June 23, 2015. (Doc. 22.) The United
States Court of Appeals for the Fifth Circuit denied a certificate of appealability. (Doc. 35; Lott v.
Davis, No. 15-10663 (5th Cir. July 26, 2016)). Petitioner now contends that the evidence was
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Lorie Davis succeeded William Stephens as Director of the Correctional Institutions Division of the Texas Department
of Criminal Justice. Under Rule 25(d) of the Federal Rules of Civil Procedure, she “is automatically substituted as a
party.”

insufficient to support the conviction. (Doc. 38 at 1.)
II. NATURE OF SUIT
A post-judgment motion that seeks to advance one or more substantive habeas claims, or
attacks a federal court’s previous resolution of a claim on its merits, qualifies as a second or
successive habeas petition. See Gonzalez v. Crosby, 545 U.S. 524, 530-33 (2005); Ruiz v.
Quarterman, 504 F.3d 523, 526 (5th Cir. 2007). Petitioner’s motion raises substantive grounds for
relief from the state conviction that he originally challenged in this case, and it is properly construed
as a successive habeas petition under 28 U.S.C. § 2254.
III. JURISDICTION
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit
lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the
party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
They have “a continuing obligation to examine the basis for jurisdiction.” See MCG, Inc. v. Great
W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).
A district court cannot exercise jurisdiction over a second or successive § 2254 petition
without authorization from the court of appeals. See 28 U.S.C. § 2244(b); Crone v. Cockrell, 324
F.3d 833, 836 (5th Cir. 2003). A petition is successive if it raises a claim that was or could have
been raised in an earlier petition or otherwise constitutes an abuse of the writ. Hardemon v.
Quarterman, 516 F.3d 272, 275 (5th Cir. 2008); Crone, 324 F.3d at 836-37. If it essentially
represents a second attack on the same conviction raised in the earlier petition, a petition is

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successive. Hardemon, 516 F.3d at 275-76 (distinguishing Crone because “Crone involved multiple
§ 2254 petitions attacking a single judgment”).2 A second petition is not successive if the prior
petition was dismissed due to prematurity or for lack of exhaustion, however. See Slack v.
McDaniel, 529U.S. 473, 487 (2000) (declining to construe an application as second or successive
when it followed a previous dismissal due to a failure to exhaust state remedies); Stewart v.
Martinez-Villareal, 523 U.S. 637, 643-46 (1998) (declining to construe an application as second or
successive when it followed a previous dismissal due to prematurity, and noting the similarities of
such dismissal to one based upon a failure to exhaust state remedies). Otherwise, “dismissal of a
first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining
federal habeas review.” Stewart, 523 U.S. at 645.
Here, Petitioner challenges the same conviction that he challenged in a prior federal habeas
petition that was denied on the merits. Under Hardemon and Crone, he was required to present all
available claims in those petitions. A claim is available when it “could have been raised had the
petitioner exercised due diligence.” Leonard v. Dretke, No. 3:02-CV-0578-H, 2004 WL 741286,
at *3 (N.D. Tex. Apr. 5, 2004) (recommendation of Mag. J.), adopted by 2004 WL 884578 (N.D.
Tex. Apr. 20, 2004). The crucial question in determining availability is whether Petitioner knew or
should have known through the exercise of due diligence the facts necessary to his current claims
when he filed his prior federal petitions challenging the same convictions challenged in this case.
Petitioner’s federal petition is successive within the meaning of 28 U.S.C. § 2244(b) because
it raises claims that were or could have been raised in his initial federal petitions challenging his

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Although Crone involved a challenge to petitioner’s holding judgment of conviction followed by a challenge to postconviction and post-sentence administrative actions that stripped him of good-time credits, Hardemon considered both
challenges to be against “the same conviction”.

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conviction. When a petition is second or successive, the petitioner must seek an order from the Fifth
Circuit Court of Appeals that authorizes this Court to consider the petition. See 28 U.S.C. §
2244(b)(3)(A). The Fifth Circuit “may authorize the filing of a second or successive application
only if it determines that the application makes a prima facie showing that the application satisfies
the requirements of [§ 2244(b)].” Id. § 2244(b)(3)(C). To present a claim in a second or successive
application that was not presented in a prior application, the application must show that it is based
on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable factfinder
would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously unavailable. Id. §
2244(b)(2).
Because the Fifth Circuit has not issued an order authorizing the district court to consider
this successive petition for habeas relief, this Court lacks jurisdiction over this action.
IV. RECOMMENDATION
The petition for writ of habeas corpus filed under 28 U.S.C. § 2254 should be
TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson
v. Haro, 282 F.3d 862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). The
Clerk of the Court should be DIRECTED to (1) terminate the post-judgment motion (doc. 38) and
application to proceed in forma pauperis (doc. 39) in this habeas case; (2) open a new habeas case
for administrative purposes only; (3) docket the post-judgment motion (doc. 38) as a § 2254 motion
filed on July 25, 2017, in that new case; (4) docket the application to proceed in forma pauperis
(doc. 39) and the order granting the application in that new case; (5) directly assign the new case to

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the same District Judge and Magistrate Judge as in this case; (6) file a copy of the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge and the order accepting
those Findings, Conclusions, and Recommendation, and the judgment in that new case; and (7) and
without further judicial action, immediately TRANSFER the newly opened § 2254 action to the
United States Court of Appeals for the Fifth Circuit.
SIGNED this 27th day of July, 2017.
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IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of these findings, conclusions and
recommendation must file specific written objections within 14 days after being served with a copy.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify
the specific finding or recommendation to which objection is made, state the basis for the objection,
and specify the place in the magistrate judge’s findings, conclusions and recommendation where the
disputed determination is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written objections will
bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate
judge that are accepted or adopted by the district court, except upon grounds of plain error. See
Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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