United States District Court, W.D. Louisiana, Shreveport Division
MAURICE HICKS, JR., JUDGE
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge
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.
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.
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.
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).
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).
§ 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).
Law and Analysis
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.
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).
foregoing reasons, IT IS RECOMMENDED that the petition be