United States District Court, W.D. Louisiana, Monroe Division
TERRY A. DOUGHTY
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
Petitioner Kevin Lamar Pitts, a prisoner in the custody of
Louisiana's Department of Corrections, filed the instant
Petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on January 22, 2018. Petitioner attacks his
convictions for simple robbery and possession of a firearm by
a convicted felon, as well as the life sentence and
twenty-five-year sentence imposed by the Fourth Judicial
District Court, Parish of Ouachita.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of the Court.
For the following reasons, it is recommended that the
Petition be DISMISSED WITH PREJUDICE for lack of
raises four assignments of error: (1) double jeopardy; (2)
ineffective assistance of trial and appellate counsel; (3)
improper denial of a motion to reopen the case; and (4)
improper adjudication as a fourth felony offender.
however, has already filed a federal petition for writ of
habeas corpus attacking the same convictions and sentences
that he attacks here. Kevin Lamar Pitts v. Warden
Louisiana State Penitentiary, No. 3:12-cv-1010 (W.D. La.
2012). In the previous petition, Petitioner raised the
following assignments of error: (1) insufficient evidence;
(2) denial of the right to confront and cross-examine a
witness; (3) improper introduction of a confession; and (4)
ineffective assistance of trial and appellate counsel.
Id. The Court denied and dismissed the previous
petition with prejudice. Pitts v. Warden, Louisiana State
Penitentiary, 2012 WL 6561731, at *1 (W.D. La. Dec. 14,
2012). Petitioner moved for a certificate of appealability,
and the Fifth Circuit Court of Appeals denied his motion.
[doc. # 41]. Thereafter, the United States Supreme Court
denied petitioner's application for writ of certiorari.
[doc. # 43].
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) does not define “second or
successive, ” the Fifth Circuit has long held that
“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.” In
re Cain, 137 F.3d 234, 235 (5th Cir. 1998); Crone v.
Cockrell, 324 F.3d 833, 836 (5th Cir.
2003). Here, Petitioner could have raised his
claims in his previous petition. Thus, the instant Petition
a second or successive petition may be considered by this
Court, Petitioner must obtain authorization to file it from
the Fifth Circuit Court of Appeals in accordance with 28
U.S.C. § 2244(b)(3)(A). Because the record does not show
that Petitioner has received such authorization, this Court
lacks jurisdiction. See Hooker v. Sivley, 187 F.3d
680, 682 (5th Cir. 1999); U.S. v. Key,
205 F.3d 773, 774 (5th Cir. 2000); Crone v.
Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
foregoing reasons, IT IS RECOMMENDED that the instant action
be DISMISSED WITHOUT PREJUDICE for lack of
the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule
72(b), parties aggrieved by this recommendation have fourteen
(14) days from service of this Report and Recommendation to
file specific, written objections with the Clerk of Court. A
party may respond to another party's objections within
fourteen (14) days after being served with a copy of any
objections or response to the district judge at the time of
to file written objections to the proposed factual findings
and/or the proposed legal conclusions reflected in this
Report and Recommendation within fourteen (14) days following
the date of its service, or within the time frame authorized
by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from
attacking either the factual findings or the legal
conclusions accepted by the District Court, except upon