Holloway v. Collier

Filing 11

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 9/14/2017) (edm)

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IN THE UNITED STATES DISTRICT ~OURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DALE LOUIS HOLLOWAY,

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v.

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

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11

2011 I

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Petitioner,

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CLERIC, u.S. DISTRICT COURT

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llo;,uty

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No.

4:17~CV~744~A

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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.

§

2254 filed by petitioner, Dale Louis Holloway, a

state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, director of TDCJ, respondent. The petition was transferred
from the Dallas division to this division. After having
considered the pleadings 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 life sentence on his 1984

conviction in Tarrant County, Texas, Case No. 0226715R, for
aggravated sexual abuse.

(Pet. at 2.) Petitioner has filed a

prior federal habeas petition in this court challenging the same
conviction.

(Pet., Holloway v. Scott, No. 4:97-CV-324-Y, ECF No.

1. 1)

II. Issues
In five grounds, petitioner raises the following claims:
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New evidence shows that his trial counsel withheld
material exculpatory evidence in the form of a
1985 sworn affidavit by an important witness,
Benny Williams;
His trial counsel conspired with the state's
counsel to keep witnesses to the actual event from
the stand;
His trial counsel knowingly and intentionally
withheld information in favor of petitioner's
innocence claim by refusing to put Williams on the
stand and destroying Williams's affidavit;
"Court ruling proves that withholding of the
witnesses in the police report" violated
petitioner's rights to equal protection and due
process; and
His trial counsel misled petitioner and the state
bar by claiming that he contacted and interviewed
all witnesses.

(Pet. 6-7b, ECF No. 1.)

1
The court takes judicial notice of the state court records filed in
petitioner's prior federal habeas action in Holloway v. Scott, Case No. 4:97-CV324-Y.

2

III. Successive Petition
Title 28 U.S.C.

2244(b) requires dismissal of a claim

§

presented in a second or successive petition filed by a state
prisoner under

§

2254 that was or could have been presented in a

prior petition unless the petition is based on:

(1) a new rule of

constitutional law made retroactive to cases on collateral review
by the Supreme Court; or (2) 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 fact finder would have found him guilty of the
offense. See 28 U.S.C.

§

2244(b) (2). Further, before such a

petition is filed in federal district court, the petitioner must
move for authorization to file the petition in the appropriate
court of appeals. Id.

§

2244(b) (3) (A).

Petitioner acknowledges that he has filed a prior federal
habeas petition challenging his 1984 conviction but asserts that
the so-called newly discovered evidence was not available to him
when he filed the prior petition.

(Pet. at 9.) However, claims

based on alleged newly-discovered evidence or a factual predicate
not previously discovered are successive. Garcia v. Quarterman,
573 F.3d 214, 221 (5th Cir. 2009). Nor does an actual innocence
claim authorize a district court to ignore or bypass the

3

constraints on successive petitions under§ 2244(b) (3) (A).
Therefore, from the face of this petition, it is apparent
that this is a successive petition, and petitioner has not
alleged or demonstrated that he has obtained authorization to
file such a petition from the Fifth Circuit Court of Appeals. See
28 U.S.C. § 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. § 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.
SIGNED September

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2017.

DISTRI