In Re: Chon Flowers ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2009
No. 09-10774
Charles R. Fulbruge III
Clerk
IN RE: CHON QUEVEDO FLOWERS,
Movant
Motion for an order authorizing
the United States District Court for the Northern
District of Texas to consider
a successive 28 U.S.C. § 2254 application
Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:
Chon Quevedo Flowers, Texas prisoner # 652860, filed in 2009 the instant
motion requesting authorization to file in the district court a successive 28
U.S.C. § 2254 application for a writ of habeas corpus challenging his 1993
conviction and sentence for murder. He argues that he should be allowed to file
a successive application because he is actually innocent of the offense. He also
seeks to argue that he was convicted based on evidence obtained during an
unconstitutional arrest and search of his home and did not receive pretrial
suppression hearings to address those violations. Finally, Flowers seeks to
argue that he was denied the effective assistance of counsel because his attorney
failed to preserve his Fourth Amendment rights and failed to object to a suspect
in-court identification procedure, a suspect out-of-court identification procedure,
and perjured testimony.
Flowers argues that he need not obtain authorization to file a second
§ 2254 application attacking his conviction because his first § 2254 application
No. 09-10774
was dismissed as time barred. Because the claims Flowers raises in his
proposed § 2254 application were or could have been raised in his first § 2254
application, which was filed in 1998 and later that year was dismissed as time-
barred under section 2244(d)(1)(A) (and as to which dismissal we and the district
court denied a certificate of appealability), the instant application is successive.
See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998); Steve D. Thompson Trucking,
Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044, 1045-46 (5th Cir. 1989); In re Pope,
No. 08-50957 (5th Cir. Dec. 3, 2008). See also Altman v. Benik, 337 F.3d 764 (7th
Cir. 2003).
We will not consider Flowers’s proposed claims to the extent they were
raised in first § 2254 application. See 28 U.S.C. § 2244(b)(1).
Flowers has not made a prima facie showing that his remaining claims are
based on a previously unavailable new rule of constitutional law made
retroactive to cases on collateral review by the Supreme Court or that the factual
predicates of his claims could not have been discovered previously through the
exercise of due diligence. See § 2244(b)(2). Nor has Flowers established that he
should be allowed to file a successive habeas application based on his assertion
of innocence. Even if an actual innocence exception survives § 2244(b)’s bar to
filing a second or successive habeas application, a question we do not answer
here, Flowers has offered no new evidence demonstrating that it is more likely
than not that no reasonable jury would have convicted him. See Schlup v. Delo,
513 U.S. 298, 327 (1995); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
Accordingly, IT IS ORDERED that Flowers’s motion for authorization to
file a successive § 2254 application is DENIED.
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