Reed v. Quarterman

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 20, 2007
• Docket: 07-10045
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2007

Charles R. Fulbruge III Clerk No. 07-10045 Summary Calendar

ARNOLD RAY REED,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:06-CV-1113 --------------------

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

Arnold Ray Reed, Texas prisoner # 1205652, appeals following

the dismissal of his 28 U.S.C. § 2254 application, wherein he

challenged his conviction for arson. The district court dismissed

the application for lack of jurisdiction and concluded that it was

successive to a previous § 2254 application that Reed had filed

challenging a prison disciplinary matter. The district court

granted Reed a certificate of appealability (COA) on the following

issue: “Whether a second § 2254 petition raising new issues which

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. could have been raised in a prior § 2254 petition, which was denied

on the merits, but were not constitutes a second or successive

petition which deprived the District Court of jurisdiction.”

Reed argues that his § 2254 application is not successive

because his first § 2254 application challenged only a prison

disciplinary conviction, whereas the instant application challenged

his underlying conviction and raised unrelated claims. He argues

that a prisoner seeking to challenge two separate judgements must

file separate habeas applications.

We review the district court’s findings of fact for clear

error and issues of law de novo. Moody v. Johnson, 139 F.3d 477,

480 (5th Cir. 1998). The Antiterrorism and Effective Death Penalty

Act requires that a prisoner seeking to file a second or successive

§ 2254 application in the district court must first apply for leave

to do so from this court. 28 U.S.C. § 2244(b)(3)(A). The district

court lacks jurisdiction to consider a successive habeas corpus

application that is filed without this court’s permission. Id.;

United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).

A prisoner’s application is not successive merely because it

follows an earlier application. In re Cain, 137 F.3d 234, 235 (5th

Cir. 1998). “[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.” Id. The sole fact

that new claims raised in a later application were unexhausted when

the first application was prosecuted does not excuse their omission

2 from a subsequent application. Crone v. Cockrell, 324 F.3d 833,

837 (5th Cir. 2003).

At the time Reed filed his first habeas application, his

claims concerning his underlying conviction were unexhausted, but

the facts necessary for challenging the conviction were known to

Reed. Reed’s second habeas application was therefore successive.

See Crone, 324 F.3d at 837. The fact that Reed challenged the

disciplinary matter before challenging the conviction does not

negate this conclusion given our strong policy against piecemealing

claims. See id.; see also In re Jimenez, 211 F. App’x 297, 298

(5th Cir. 2006). The district court correctly dismissed the

application for lack of jurisdiction. See Key, 205 F.3d at 774.

AFFIRMED.