Smith v. Davis-Director TDCJ-CID

Filing 7

MEMORANDUM OPINION and ORDER: It is ORDERED that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed without prejudice as an unauthorized successive petition. Petitioner has not made a showing that reasonable jurists would question this court's procedural ruling. Therefore, it is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 9/6/2017) (bdb)

FORT WORTH DIVISION
PHILLIP DWAIN SMITH,

BY------~------~

'-----~gcputy

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Petitioner,

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v.

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No. 4:17-CV-723-A

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LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

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Respondent.

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MEMORANDUM OPINION
and
ORDER

This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.

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2254 filed by petitioner, Phillip Dwain Smith, a

state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie
Davis, director of TDCJ, respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be summarily
dismissed as an unauthorized successive petition. No service has
issued upon respondent.
I.

Factual and Procedural History

Petitioner continues to serve his 60- and 20-year sentences
on his 2010 state convictions for continuous sexual abuse of a

child (one count) , aggravated sexual assault of a child younger
than 14 years of age (two counts), and indecency with a child
(three counts). Petitioner has filed a prior federal habeas
petition in this court challenging the same convictions.

(Pet.,

Smith v. Stephens, No. 4:13-CV-257-Y, ECF No. 1.)
II. Issues
In five grounds, petitioner raises the following claims:
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He is actually innocent (ground one) ;

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The indictment is void and the evidence was
insufficient (ground two) ;
He received effective assistance of counsel on
appeal (grounds three and four); and
A "Brain Fingerprinting" test would prove his
actual innocence.

(Pet. 6-7,

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ECF No. 1. )
III. Successive Petition

Title 28 U.S.C.
successive

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2244(b) requires dismissal of a second or

2254 petition filed by, or on behalf of, a state

prisoner unless specified conditions are met. 28 U.S.C.

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2244 (b) (1)- (2). A petition is successive when it raises a claim
or claims challenging the petitioner's conviction or sentence
that were or could have been raised in an earlier petition or

1There are two page 7's in the petition.

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otherwise constitutes an abuse of the writ. See Crone v.
Cockrell, 324 F.3d 833, 837 (5th Cir. 2003); In re Cain, 137 F.3d
234, 235

(5th Cir. 1998). 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 petition
challenging the same conviction.
The claims raised in this case.were or could have been
raised in petitioner's earlier petition. Therefore, petitioner
must obtain authorization to file the petition in this court from
the United States Court of Appeals for the Fifth Circuit. See 28
U.S.C.

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2244(b) (1)-(3). Without such authorization, this court

is without jurisdiction to consider the petition.' See United
States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.2000);
Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir.1999).
For the reasons discussed herein,
It is ORDERED that the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.

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2254 be, and is hereby,

dismissed without prejudice as an unauthorized successive
petition. Petitioner has not made a showing that reasonable
2Because the court lacks jurisdiction, no ruling is made on petitioner's
application to proceed in forma pauperis or his request for court-appointed
counsel. (Appl., ECF No. 2; Mot., ECF No. 3.)

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jurists would question this court's procedural ruling. Therefore,
it is further ORDERED that a certificate of appealability be, and
is hereby, denied.

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