Reed v. Quarterman ( 2007 )

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this opinion should not be published and is not precedent except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.
3