Eric Tucker v. Lorie Davis, Director ( 2019 )

Case: 18-20343 Document: 00515185302 Page: 1 Date Filed: 11/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20343 FILED
November 4, 2019
Lyle W. Cayce
ERIC SAMUEL TUCKER, Clerk
Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-1470
Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
PER CURIAM:*
Eric Samuel Tucker was convicted in Texas of aggravated assault of a
family member and sentenced to 30 years imprisonment. Tucker v. State, 2016
WL 3162367, at *1 (Tex. App. June 2, 2016). In May 2018, Tucker filed a
habeas petition under 28 U.S.C. § 2254, which the district court dismissed
without prejudice as duplicative of an already pending petition, filed in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-20343 Document: 00515185302 Page: 2 Date Filed: 11/04/2019
No. 18-20343
September 2017. In its order dismissing the petition, the district court did not
rule whether a certificate of appealability (COA) was warranted. Tucker now
appeals to this court without a COA.
A COA is required to appeal the denial of an unauthorized successive
habeas petition under § 2254. See Cardenas v. Thaler, 651 F.3d 442, 443 (5th
Cir. 2011). Because the district court did not issue a COA determination, we
lack jurisdiction over Tucker’s appeal. We decline to remand this case to the
district court for a COA ruling because remand would be futile. See United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). The district court will only
grant a COA when “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). No reasonable jurist could find the district court’s procedural
ruling dismissing Tucker’s petition debatable. Claims raised in a successive
habeas petition that were raised in the initial petition must be dismissed. 28
U.S.C. § 2244(b)(1). And, any new claim must be dismissed unless the “factual
predicate for the claim could not have been discovered previously through the
exercise of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i). Here, all but one of
Tucker’s claims were raised in his first petition, and the lone new claim is an
ineffective assistance of counsel claim, which no reasonable jurist could find
was undiscoverable when Tucker filed his first petition. Because remanding
for the district court to rule on the COA would be pointless, we dismiss for lack
of jurisdiction.
For the forgoing reasons, the appeal is dismissed.
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