Hunt v. Stephens

Filing 6

MEMORANDUM AND OPINION. MOTION/APPLICATION to Proceed In Forma Pauperis 2 is GRANTED. Petition for a Writ of Habeas Corpus is DISMISSED for lack of jurisdiction. (Signed by Judge Vanessa D Gilmore) Parties notified.(amwilliams, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
FARRIS LEE HUNT, JR.,
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(TDCJ-CID #1571893)
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§
Petitioner,
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§
VS.
§ CIVIL ACTION NO. H-14-3080
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WILLIAM STEPHENS,
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Respondent.
§

MEMORANDUM AND OPINION

Petitioner, Farris Lee Hunt, Jr., seeks habeas corpus relief under 28 U.S.C. § 2254. The
threshold issue is whether this petition is subject to dismissal as successive. For the reasons
discussed below, the court finds that this petition should be dismissed for lack of jurisdiction.

I.

Background
Hunt challenges a conviction for aggravated sexual assault in the 2nd 25th Judicial District

Court of Colorado County, Texas. (Cause NumberCR07-048-A). On February 15,2011, Hunt filed
a federal petition for a writ of habeas corpus, Civil Action Number 4: 11-002 I-RAJ, in the Western
District of Texas, collaterally attacking his conviction for aggravated sexual assault. On June 6,
2012, that court denied Hunt's claims as time-barred and on the merits.
In the instant federal petition filed on October 24,2014, Hunt challenges the same conviction
for aggravated sexual assault. (Docket Entry No.1, Petition for a Writ of Habeas Corpus, p. 3).

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II.

Discussion
The issue of whether a habeas corpus petition is successive may be raised by the district court

sua sponte. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). This court lacks jurisdiction
to consider Hunt's petition as it is a "successive" application governed by the amendments to the
AEDP A requiring that the Fifth Circuit authorize the district court to consider the application before
it is filed in the district court.
Title 28 U.S.C. § 2244(b )(3)(A) (1998) provides, "Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider the application." There is no
indication on the record that the United States Court of Appeals for the Fifth Circuit has authorized
this court to consider Hunt's successive application, and therefore, this court lacks jurisdiction to
consider Hunt's habeas claims. 1

III.

Conclusion
Hunt's petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED for lack

of jurisdiction. Hunt's motion to proceed in forma pauperis, (Docket Entry No.2), is GRANTED.
All remaining pending motions are DENIED as moot.
The showing necessary for a Certificate of Appealability is a substantial showing of the
denial of a constitutional right. Hernandez v. Johnson, 213 F .3d 243, 248 (5th Cir. 2000)( citing Slack

lWhen a civil action is filed in a court and that court finds that there is a want of jurisdiction, the
court shall transfer the action to any other court in which the action could have been brought at the time it
was filed. 28 U .S.c. § 1631. The action shall proceed as if it had been filed in the COUlt to which it is
transferred on the date upon which it was actually filed in the court from which it was transferred. Jd.
From Hunt's litigation history, the court determines that Hunt is capable of refiling this suit in the
United States Court of Appeals for the Fifth Circuit.
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v. McDaniel, 429 U.S. 473, 483 (2000)). An applicant makes a substantial showing when he
demonstrates that his application involves issues that are debatable among jurists of reason, that
another court could resolve the issues differently, or that the issues are suitable enough to deserve
encouragement to proceed further. See Clark v. Johnson, 202 F.3d 760, 763 (5th Cir. 2000).
When the district court denies a habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. Ruddv. Johnson, 256 F.3d 317,319 (5th Cir. 2001)(citing
Slack, 529 U.S. at 484). Hunt has not made the necessary showing. Accordingly, a certificate of
appealability is DENIED.
SIGNED at Houston, Texas, on

Octohif !J-1

,2014.

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VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

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