Bluitt v. Director, TDCJ-CID
Filing
43
MEMORANDUM OPINION and ORDER: It is ORDERED that respondent's 37 motion to dismiss be, and is hereby, granted and that petitioner's writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as successive. It is further ORDERED that a certificate of appealability be, and is hereby, denied, as petitioner has not demonstrated that the Fifth Circuit has authorized him to file a successive petition nor has he made a substantial showing of the denial of a constitutional right. All pending motions not previously ruled upon are DENIED. (Ordered by Judge John McBryde on 2/25/2016) (tln)
U.S. DISTRICT COlJRT
NORTIIERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT \COURT
FOR THE NORTHERN DISTRICT OF tEXAS
FORT WORTH DIVISION
:
Petitioner,
FEB .2 5 20!6
CJ FRK, u.s.
I
MAURICE BLUITT,
~l'!U·:!)
[J,;~RICT COl!HT
I
"'"-·~ -~.---------.------~----------
§
§
§
V,
No. 4:15-CV-810-A
§
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Maurice Bluitt, a state
prisoner who was incarcerated in the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ), at the time
the petition was filed, against William Stephens, Director of
TDCJ. On January 25, 2016, petitioner notified the court that he
has been paroled by TDCJ and extradited to Arapaho County,
Colorado. Mot., ECF No. 38.
After having considered the pleadings, the documentary
exhibits, and relief sought by petitioner, the court has
concluded that the petition should be dismissed as successive.
I.
Factual and Procedural History
By way of this petition, petitioner challenges his 2000
conviction in the 372nd Judicial District Court of Tarrant
County, Texas, Case No. 0733927D, for indecency with a child by
contact. Pet. 2, ECF No. 1. He raises the following issues for
habeas relief:
1.
2.
3.
4.
5.
6.
7.
Improper jury instruction in punishment phase;
Brady rules violation;
Prosecutor and defense counsel misconduct;
Ineffective assistance of counsel;
Violations of the Texas Code of Criminal
Procedure;
Violations of the Texas Rules of Evidence; and
Inability to get an attorney or "actual innocence"
help.
Pet'r's Mern.
5-7, ECF No.
1.
Petitioner has filed a prior federal habeas petition in this
court challenging the same state-court conviction and raising one
or more of the same claims. See Bluitt v. Quarterman, Civil
Action No. 4:06-CV-166-Y (pet. denied). Consequently, respondent
has filed a motion to dismiss the petition as an unauthorized
successive petition. Resp't's Mot. 1, ECF No. 13. In response,
petitioner has filed a motion to transfer the action to the Fifth
Circuit for a determination as to whether he may file the
petition in this court.
2
II.
Title 28 U.S.C.
Discussion
2244(b) provides that a claim presented in
§
a second or successive petition filed by a state prisoner under
§
2254 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
the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(B) (i)
(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) (1)- (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). Toward that end, this
court may either dismiss the claim without prejudice pending
review by a three-judge panel of the Fifth Circuit Court of
Appeals, or, as petitioner requests, it may transfer the
successive petition to the Fifth Circuit for a determination of
whether he should be allowed to file the successive petition in
3
district court. 28 U.S.C. § 2244(b) (3) (A). See also Henderson v.
Haro, 282 F.3d 862, 864
(5th Cir. 2002); In re Epps, 127 F.3d
364, 365 (5th Cir.1997)
(approving practice of transferring
successive motions to the Circuit and establishing procedures in
the Circuit to handle such transfers). Because petitioner has
presented neither argument nor evidence indicating that he will
be able to make a prima facie showing that his application
satisfies the statute, dismissal without prejudice would be more
efficient and better serve the interests of justice than a
transfer to the Fifth Circuit. Accordingly, the petition should
be dismissed to allow petitioner to seek authorization to file
his petition in the Fifth Circuit as required by§ 2244(b) (3) and
(4). In re Epps, 127 F.3d 364, 365 (5th Cir. 1997); United States
v. Orozco-Ramirez, 211 F. 3d 862, 867 (5th Cir. 2000).
For the reasons discussed herein,
It is ORDERED that respondent's motion to dismiss be, and is
hereby, granted and that petitioner's writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as
successive. It is further ORDERED that a certificate of
appealability be, and is hereby, denied, as petitioner has not
demonstrated that the Fifth Circuit has authorized him to file a
successive petition nor has he made a substantial showing of the
4
denial of a constitutional right. All pending motions not
previously ruled upon are DENIED .
SIGNED February
...--
__,~~-~---'
2016.
/
ISTRicrSUDGE
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