Opinion
No. 3:03-CV-2094-M
March 10, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
PROCEDURAL BACKGROUND
This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is in the custody of the Texas Department of Criminal Justice — Institutional Division.
On November 25, 1997, Petitioner pled no contest to two charges of driving while intoxicated, enhanced, in the 3rd Criminal District Court, Dallas County, Texas, cause numbers F96-53877-J and F97-01137-J. See Ex parte Dingier, No. 55, 202-01, pp. 34-39. The Court assessed punishment at five years imprisonment for each case, then suspended the sentences and placed Petitioner on probation for five years. CR p. 3.
"CR" refers to the state court's record.
On April 19, 2002, a hearing was held pursuant to the state's motion to revoke probation. The court held there was sufficient evidence to revoke probation but remanded Petitioner to probation. CR 13-17. The court extended probation for one year and required Petitioner to complete a substance abuse felony program. Id.
Petitioner appealed the one-year extension of his probation. On September 5, 2002, the Fifth District Court of Appeals dismissed the appeal finding that no appeal could be taken from an order modifying conditions of community supervision. Dingier v. State, Nos. 05-02-01306, 05-02-01307 (Tex.App.-Dallas, Sept. 5, 2002). Petitioner did not file a petition for discretionary review. On December 5, 2002, Petitioner filed a state petition for writ of habeas corpus. Ex parte Dingier, No. 55, 202-01. On May 7, 2003, the Court of Criminal Appeals dismissed the petition. Id. at cover.
On April 10, 2003, Petitioner filed a federal petition for writ of habeas corpus challenging a disciplinary proceeding. See Dingier v. Cockrell, No. 3:03-CV-863-L (N.D. Tex. April 24, 2003). On June 30, 2003, the Court denied the petition.
Pro se habeas petitions are considered filed when the papers are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
On September 4, 2003, Petitioner's probation was revoked and he was sentenced to four years imprisonment. On September 11, 2003, Petitioner filed this federal petition. Petitioner argues: (1) The Texas enhancement laws are unconstitutional; (2) Petitioner's conditions of probation are unconstitutional; (3) when two convictions become final on the same day, only one should be used for enhancement purposes; (4) Petitioner's conditions of probation violate the Double Jeopardy Clause; (5) he was denied due process; (6) he is entitled to immediate release to mandatory supervision; and (7) he has not received adequate access to the prison law library.
It appears Petitioner challenges his convictions, the one-year extension of his probation, his revocation, and the calculation of his time credit and eligibility for mandatory supervision. Because Petitioner filed a previous federal petition for habeas relief, the Court must determine whether the instant petition is second or successive within the meaning of 28 U.S.C. § 2244(b).
SECOND OR SUCCESSIVE APPLICATION
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214, ("AEDPA"), limits the circumstances under which a state prisoner may file a second or successive application for habeas relief in federal court. In general, "a later petition is successive when it: (1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the writ." Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 157 (2003). A petitioner must submit all available claims in his first habeas petition. See United States v. Orozco-Ramirez, 211 F.3d 862, 870-71 (5th Cir. 2000).
In this case, Petitioner knew of his claims regarding his convictions and the one-year extension of his probation at the time he filed his first federal habeas petition. Further, even if these claims were unexhausted at the time he filed his federal habeas petition, he was required to bring these claims in his first petition. See Crone, 324 F.3d at 837-38 (finding the Fifth Circuit has "long held that under an abuse of the writ standard, `the sole fact that the new claims were unexhausted when the earlier federal writ was prosecuted will not excuse their omission.'"). Because the instant petition contains claims that could have been presented in Petitioner's earlier federal habeas petition, the instant petition is successive under 28 U.S.C. § 2244(b).
When a petition is second or successive, the petitioner must seek an order from the Fifth Circuit Court of Appeals that authorizes this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). The Fifth Circuit "may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of [§ 2244(b)]." Id. § 2244(b)(3)(C). To present a claim in a second or successive application that was not presented in a prior application, the application must show that it is based on: (1) 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 factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Id. § 2244(b)(2). Before Petitioner files his application in this Court, a three-judge panel of the Fifth Circuit Court of Appeals must determine whether the application makes the requisite prima facie showing. See id. § 2244(b)(3)(A) and (B). The Fifth Circuit has not issued an order authorizing the district court to consider this successive application for habeas relief.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the petition be dismissed as successive pursuant to 28 U.S.C. § 2244(b).