McLain v. Stephens-Director TDCJ-CID

Filing 5

Opinion and Order: Petitioner's petition is DISMISSED for lack of jurisdiction without prejudice to his right to seek authorization from the Fifth Circuit Court of Appeals to file a successive § 2254 petition. All outstanding motions are denied. (Ordered by Judge Reed C O'Connor on 4/3/2015) (ewd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DANNY RAY MCLAIN,
Petitioner,
vs.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO. 4:15-CV-237-O

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by Petitioner, Danny Ray McLain, a state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against William Stephens, Director of TDCJ,
Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded
that the petition should be dismissed as successive. No service has issued upon Respondent.
I. BACKGROUND
Petitioner is serving cumulative 20-year and 25-year sentences from Palo Pinto County. Pet.
2, ECF No. 1; Resp’t’s Answer, McLain v. Stephens, Civil Action No. 4:14-CV-740-Y, ECF No.
8. This is Petitioner’s fourth habeas petition filed in this Court. Two of the prior petitions remain
pending at this time. Pet., McLain v. Stephens, Civil Action No. 4:14-CV-740-Y, ECF No. 1; Pet.,
McLain v. Stephens, Civil Action No. 4:14-CV-589-O, ECF No. 1; Pet., McLain v. Quarterman, Civil
Action No. 4:08-CV-648-A, ECF No. 1. In the instant petition, Petitioner claims the state court’s
1990 “stacking/cumulation order is in violation of [his] 14th Amendment rights.” In the way of
supporting facts, he states:
On April 3, 1990 Petitioner was sentenced to 25 years in cause no. 8870.

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sentence was stacked on top of 20 years in cause no. 8340 recieved [sic] on October
3, 1986. No parole pre-revocation warrants were issued and Petitioner’s parole in
cause no. 8340 was never legally revoked until June 6, 1996.
Pet. 6, ECF No. 1. He seeks to have the 1990 cumulation order voided. Id. at 7. According to
Petitioner, he is just now raising the claim–
“[b]ecause the evidence in support of petition was not printed untill [sic] January 22,
2014 and did not come to hand of Petitioner untill [sic] September 26, 2014.
Petitioner filed Dispute Resolution on October 1st, 2014. All evidence submitted in
Petitioner[’]s state memorandum.
Id. at 9.
II. DISCUSSION
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and
28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed.1 The Court of
Appeals for the Fifth Circuit recognizes a district court’s authority under Rule 4 to examine and
dismiss frivolous habeas petitions prior to any answer or other pleading by the state. Kiser v.
Johnson, 163 F.3d 326, 328 (5th Cir. 1999). From the face of the petition and court records filed in

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Section 2243, governing applications for writ of habeas corpus, provides:

A court, justice or judge entertaining an application for a writ of habeas corpus shall
forthwith award the writ or issue an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application that the applicant or person is not
entitled thereto.
28 U.S.C. § 2243 (emphasis added).
Rule 4 of the Rules Governing Section 2254 Cases provides:
The original petition shall be promptly presented to a judge of the district court in
accordance with the procedure of the court for the assignment of its business. The petition shall be
examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district
court, the judge shall make an order for its summary dismissal and cause the petitioner to be
notified.
Rules Governing Section 2254 Cases, Rule 4 (emphasis added).

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Petitioner’s other federal habeas actions, it is apparent that this is a second or successive petition. See
28 U.S.C. § 2244(b)(2).
Title 28 U.S.C. § 2244(b) requires dismissal of a second or successive petition filed by a state
prisoner pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(b)(1)-(2). A petition is successive when
it raises a claim or claims challenging the petitioner’s conviction or sentence that was or could have
been raised in an earlier petition or otherwise constitutes an abuse of the writ. Crone v. Cockrell, 324
F.3d 833, 837 (5th Cir. 2003); In re Cain, 137 F.3d 234, 235 (5th Cir. 1998). Petitioner does not
specify the nature of the evidence he relies upon in support of his new claim or explain why he could
not have discovered the factual basis of the claim between 1990 and 2014, some twenty-four years
later. Under the terms of § 2244(b)(2), a claim presented in a second or successive petition that was
not presented in a prior petition must be dismissed unless–
(A) the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(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 constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
28 U.S.C.§ 2244(b)(2). Further, before a petitioner may file a successive § 2254 petition, he must
obtain authorization from the appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A).
Petitioner has made no showing under § 2244(b)(2) nor has he demonstrated that he has
obtained leave to file this petition from the Fifth Circuit. Thus, this Court is without jurisdiction to
consider the petition. In re Epps, 127 F.3d 364, 365 (5th Cir. 1997); United States v. OrozcoRamirez, 211 F.3d 862, 867 (5th Cir. 2000).
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III. CONCLUSION
For the reasons discussed herein, Petitioner’s petition is DISMISSED for lack of jurisdiction
without prejudice to his right to seek authorization from the Fifth Circuit Court of Appeals to file a
successive § 2254 petition. All outstanding motions are denied.
SO ORDERED on this 3rd day of April, 2015.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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