Jackson v. Thaler

Filing 5

OPINION ON DISMISSAL denying 2 MOTION/APPLICATION to Proceed In Forma Pauperis, denying 3 MOTION for Leave to File Memorandum Brief in Support.(Signed by Judge Melinda Harmon) Parties notified.(arrivera, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SAMUEL ROY JACKSON,
TDCJ-CID NO.1268721,
Petitioner,
v.
RICK THALER,
Respondent.

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CIVIL ACTION NO. H-11-3504

OPINION ON DISMISSAL
Petitioner Samuel Roy Jackson, a state inmate proceeding pro se, seeks habeas
corpus relief under 28 U.S.C. § 2254, from a 2004 conviction for aggravated robbery in the
183rd Criminal District Court of Harris County, Texas in cause number 913043. Petitioner’s
first federal habeas petition challenging his conviction was dismissed as time-barred.

See

Jackson v. Quarterman, Civil Action No.4:08-0443 (S.D. Tex. June 1, 2009). For the reasons to
follow, the Court will dismiss the pending petition without prejudice.
The Antiterrorism and Effective Death Penalty Act of 1996 requires dismissal of a
second or successive petition filed by a state prisoner under § 2254 unless specified conditions
are met. 28 U.S.C. § 2244(b)(1)-(2). A petition is successive when, as here, 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.1 See In re Cain, 137 F.3d 234,
235 (5th Cir. 1998); see also Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009). The fact
that the earlier petition was dismissed with prejudice on limitations grounds does not remove the
subsequent petition from the second-successive requirements of § 2244(b). See Hooker v. Sivley,
1

Title 2244(b) does not define what constitutes a “second or successive habeas corpus application.” Even so, the
Court finds the pending petition for habeas relief is a “second or successive habeas corpus application” within the
meaning of section 2244(b) because it, like petitioner’s previous habeas application, challenges petitioner’s
conviction in cause number 913043.

187 F.3d 680, 682 (5th Cir. 1999). Compare Gonzalez v. Crosby, 545 U.S. 524, 533 n.6 (2005).
Thus, before such a petition is filed in federal district court, the petitioner must move in the
appropriate court of appeals for an order authorizing the district court to consider the application.
28 U.S.C. § 2244(b)(3).
In this case, petitioner has not made any showing of having obtained authorization
from the Fifth Circuit Court of Appeals to file a successive federal habeas corpus application.
Because petitioner has failed to obtain the appropriate appellate court permission to file a
successive federal habeas petition as required by 28 U.S.C. § 2244(b)(3)(A), this Court has no
authority to consider his request for relief.

Consequently, this Court lacks subject matter

jurisdiction to consider petitioner’s application for a writ of habeas corpus.
Accordingly, this action is DISMISSED without prejudice to seeking
authorization from the court of appeals to proceed in this Court on any new claims.
Petitioner has not made a substantial showing that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,” and that
such jurists “would find it debatable whether the district court was correct in its procedural
ruling.” Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). For this reason, this court finds that a certificate of appealability should
not issue in this case.
Petitioner’s application to proceed in forma pauperis (Docket Entry No.2) is
DENIED. All other pending motions are DENIED.
SIGNED at Houston, Texas, this 5th day of October, 2011.

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MELINDA HARMON
UNITED STATES DISTRICT JUDGE