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Robinson v. Warden

United States District Court, W.D. Louisiana, Shreveport Division

August 2, 2018

ARTHUR RAY ROBINSON, Petitioner
v.
WARDEN, Respondent

          S. MAURICE HICKS, JR., JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge

         Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2254) filed by pro se Petitioner Arthur Ray Robinson (“Robinson”) (#425896). Robinson is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the David Wade Correctional Center in Homer, Louisiana. Robinson challenges his conviction in the 1st Judicial District Court, Caddo Parish.

         Because Robinson's petition is second and successive, and Robinson has not obtained authorization to file a second or successive petition from the United States Court of Appeals for the Fifth Circuit, the petition should be dismissed for lack of jurisdiction.

         I. Background

         Robinson was convicted of two counts of second degree kidnapping. He was sentenced to 15 years imprisonment on Count 1. With respect to Count 2, Robinson was adjudicated a fourth felony offender and received an enhanced sentence of life imprisonment. State v. Robinson, 780 So.2d 1213 (La.App. 2d Cir. 2001), writ denied, 812 So.2d 642 (La. 2002). The state appellate court reversed the conviction and sentence on Count 1 for insufficient evidence, but affirmed the conviction and sentence on Count 2. Id.

         Robinson filed a § 2254 petition in this Court raising claims of insufficient record, insufficient evidence, improper multiple offender adjudication, excessive sentence, prosecutorial misconduct, and ineffective assistance of counsel. (5:04-cv-1603, Doc. 12). The petition was denied on the merits, and certificate of appealability was denied. (5:04-cv-1603, Docs. 14, 23).

         Robinson filed subsequent post-conviction motions in the trial court, all of which were denied. (5:16-cv-678, Doc. 6, p. 2). Robinson then filed another § 2254 petition in this Court. The petition was dismissed as time-barred. (5:16-cv-678, Doc. 8).

         In his § 2254 petition now before the Court, Robinson claims he was denied a fair jury trial due to prosecutorial misconduct, hearsay testimony, and the ineffective assistance of counsel. (Doc. 5, pp. 5-9).

         II. Law and Analysis

         Robinson has previously filed § 2254 petitions in this Court, which were adjudicated on the merits. Robinson raises a claim that could have been raised in an earlier petition. Thus, Robinson's petition is second or successive. See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998). Robinson is required to obtain authorization from the Fifth Circuit to file this second or successive petition. See 28 U.S.C. § 2244(b)(3) (before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application). According to the record and the Fifth Circuit, Robinson has not obtained authorization.

         Until such time as Robinson obtains authorization from the Fifth Circuit, this Court is without subject matter jurisdiction over his petition. See Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999).

         III. Conclusion

         For the foregoing reasons, IT IS RECOMMENDED that the petition be ...


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