Hawkins v. Stephens

Filing 16

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION granting 8 MOTION to Dismiss with Brief in Support, 11 Memorandum and Recommendation. In the event that Petitioner seeks a Certificate of Appealability, the request is DENIED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MELCHOR HAWKINS JR.,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:14-CV-314
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Respondent William Stephens’s motion to dismiss
(D.E. 8), seeking dismissal of Petitioner Melchor Hawkins, Jr.’s Petition for Writ of
Habeas Corpus which was filed pursuant to 28 U.S.C. §§ 2241 and 2254 (D.E. 1). On
February 27, 2015, United States Magistrate Judge B. Janice Ellington issued her
Memorandum and Recommendation (“M&R”) (D.E. 11), recommending that
Respondent’s motion be granted because it is second or successive and that a Certificate
of Appealability be denied. This Court received Petitioner’s objections (D.E. 12) on
March 16, 2015.

Petitioner’s objections, in large part, reiterate his habeas petition

arguments without identifying any particular claimed error in the M&R and do not
respond to the conclusion that his application is successive. The Court has construed
Plaintiff’s objections liberally and was able to discern only one specific objection.
Petitioner objects to the M&R’s recommendation to dismiss his application
without prejudice and asks this Court to stay the proceedings so that he can seek
permission from the Fifth Circuit Court of Appeals to file a second or successive petition.
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D.E. 11, p. 2. As the Magistrate Judge explained, this Court may either dismiss the claim
without prejudice pending review by a three-judge panel of the Fifth Circuit or it may
transfer the successive petition to the Fifth Circuit for a determination of whether
petitioner should be allowed to file the successive motion in the district court. D.E. 11,
pp. 6-7.
The Court agrees with the Magistrate Judge’s finding that dismissal without
prejudice would be more efficient and would better serve the interest of justice than a
transfer to the Fifth Circuit because Petitioner has presented neither argument nor
evidence indicating that he will be able to make a prima facie showing that his
application will satisfy the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
See 28 U.S.C. § 2244(b)(2), (b)(3)(C). Moreover, because this Court does not have
jurisdiction to hear Petitioner’s claim, it is without authority to enter a stay of the
proceedings. See United States v. Key, 205 F.3d 773, 775 (5th Cir. 2000); Childress v.
Quarterman, 2007 WL 2964336, at *3 (S.D. Tex. Oct. 7, 2007) (denying petitioner’s
motion to stay his successive habeas corpus petition for lack of jurisdiction).
Consequently, Petitioner’s objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R (D.E. 11), as well as Petitioner’s objection, and
all other relevant documents in the record, and having made a de novo disposition of the
portions of the Magistrate Judge’s M&R to which the objection was specifically directed,
this Court OVERRULES Petitioner’s objection and ADOPTS as its own the findings
and conclusions of the Magistrate Judge. Accordingly, Respondent’s motion to dismiss
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(D.E. 8) is GRANTED and this action is DISMISSED without prejudice. In the event
that Petitioner seeks a Certificate of Appealability, the request is DENIED.

ORDERED this 17th day of June, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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