Foxx v. Brooks ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION CARLOS FOXX PETITIONER v. No. 4:19-CV-52-DMB-RP MIDDLE BROOKS RESPONDENT ORDER On or about April 9, 2019, Carlos Foxx filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Mississippi. Doc. #1. Foxx’s petition challenges his 2013 convictions and sentences in the Circuit Court of Coahoma County, Mississippi, for attempted armed robbery, armed robbery, and manslaughter. Id. at 1. On December 17, 2019, the state filed a motion to dismiss, arguing that this Court lacks jurisdiction over the petition, that the petition is untimely, and that it is procedurally defaulted. Doc. #9 at 2, 17. The motion asserts that “these claims should be dismissed with prejudice for lack of jurisdiction or transferred to the Court of Appeals for the Fifth Circuit for authorization to file” a successive petition. Id. at 2 n.3. The Antiterrorism and Effective Death Penalty Act requires that an applicant seeking to file a second or successive petition must first “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Section “2244(b)(3)(A) acts as a jurisdictional bar to the district court’s asserting jurisdiction over any successive habeas petition until [the Fifth Circuit] has granted the petitioner permission to file one.” Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). While “a district court may dispose of applications lacking authorization through dismissal” for lack of jurisdiction, it may, pursuant to 28 U.S.C. § 1631, transfer such a petition to the Fifth Circuit, the court with jurisdiction over the action, “upon a finding that the petition is successive.” United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015). Foxx has filed at least one unsuccessful § 2254 petition challenging the same convictions and sentences he seeks to challenge in this action. See Foxx v. State of Mississippi, No. 4:14-cv- 85, 2015 WL 1321500, at *1 (N.D. Miss. Mar. 24, 2015). However, Foxx has not obtained an order of authorization before filing this action. Therefore, in the interest of justice and judicial economy: 1. The motion to dismiss [9] is GRANTED in Part and DENIED in Part. It is GRANTED to the extent it seeks transfer to the Fifth Circuit. It is DENIED in all other respects. 2. The Clerk of Court shall TRANSFER this petition and the entire record of this case to the Fifth Circuit Court of Appeals in accordance with 28 U.S.C. § 2244(a) & b(3)(c), and 28 U.S.C. § 1631. 3. This case is CLOSED. SO ORDERED, this 10th day of September, 2020. /s/Debra M. Brown UNITED STATES DISTRICT JUDGE