In Re: Emanual Fields ( 2023 )

Case: 23-90016 Document: 00516789776 Page: 1 Date Filed: 06/16/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-90016
FILED
____________ June 16, 2023
In re Emanual Deleon Fields, Lyle W. Cayce
Clerk
Petitioner.
______________________________
Motion for Permission to Proceed as a Sanctioned
Litigant
______________________________
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam: *
Emanual Deleon Fields, Texas prisoner # 01127671, moves for
permission to proceed after having been sanctioned in order to file a motion
for authorization to file a successive 28 U.S.C. § 2254 application. His
repeated, unsuccessful efforts to challenge his three aggravated robbery
convictions and 60-year sentence have resulted in the imposition of a $100
sanction by this court, which remains unpaid. He was also barred from filing
in this court or any court subject to this court’s jurisdiction any pleadings that
challenge his convictions or sentence until the sanction is paid in full, unless
he first obtains leave of the court in which he seeks to file his pleadings. See
In re Fields, No. 19-10584 (5th Cir. July 15, 2019) (unpublished order).
In April 2023, Fields filed a motion for authorization to file a
successive § 2254 application challenging his three aggravated robbery
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-90016
convictions. He was advised that the motion could not proceed until he paid
the previously imposed sanction and was directed to submit the payment or
advise the court in writing whether he had paid the sanction. He then filed
this motion to proceed as a sanctioned litigant, asserting that he is an indigent
prisoner with insufficient funds to pay the $100 sanction. He requests
permission to file the above-referenced motion for authorization to file a
successive § 2254 application and argues that he has raised nonfrivolous
issues in his motion for authorization.
Fields must obtain this court’s authorization to file a successive
§ 2254 application. See 28 U.S.C. § 2244(b)(3)(A). To obtain permission,
he must make a prima facie showing that his proposed application relies on
either (1) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” or
(2) a factual predicate that “could not have been discovered previously
through the exercise of due diligence” and additionally that “the facts
underlying the claim, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found [him] guilty
of the underlying offense.” § 2244(b)(2); see also § 2244(b)(3)(C).
In his motion for authorization, Fields seeks to argue that he is actually
innocent based on four allegations of ineffective assistance of counsel. This
court “does not recognize freestanding claims of actual innocence on federal
habeas review.” In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009).
Further, Fields may not rely on an assertion of actual innocence to serve as a
gateway to overcome the bar to successive filing. See Jackson v. Lumpkin, 25
F.4th 339, 341-42 (5th Cir. 2022). He also had not made a prima facie
showing that his claims of ineffective assistance are based on either a new rule
of constitutional law or a new factual predicate that could not have been
discovered previously through the exercise of due diligence as required for
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No. 23-90016
authorization under § 2244(b)(2). Therefore, Fields has not shown that he
has raised a nonfrivolous issue in his motion for authorization. See Gelabert
v. Lynaugh, 894 F.2d 746, 748 (5th Cir. 1990); see also Carr v. Capital One,
N.A., 460 F. App’x 461, 467 (5th Cir. 2012).
Accordingly, Fields’s motion for permission to proceed as a
sanctioned litigant is DENIED. Fields is again CAUTIONED that the
filing of frivolous or repetitive challenges to his aggravated robbery
convictions and sentence in this court or any court subject to this court’s
jurisdiction will subject him to additional and progressively more severe
sanctions.
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