United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
WHITEHURST, MAGISTRATE JUDGE
petitioner Elrick J. Gallow, also known as Elrick S. Gallow,
is an inmate in the custody of Louisiana's Department of
Public Safety and Corrections and confined at the Raymond
Laborde Correctional Center in Cottonport, Louisiana. In the
instant petition, he attacks his 1999 conviction for
second-degree battery and second-degree kidnapping and the
thirty (30) year sentence imposed thereon by Louisiana's
13th Judicial District Court, Evangeline Parish, in the
matter assigned Docket Number 58282 FA. This 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
deemed SUCCESSIVE and
TRANSFERRED to the United States Fifth
Circuit Court of Appeal.
of the Case
November 23, 1999, in the 13th Judicial District
Court in Evangeline Parish, Petitioner pleaded guilty to one
count of second degree battery and one count of second degree
kidnapping. [Rec. Doc. 1, p. 1] This is his third federal
petition for writ of habeas corpus challenging the subject
confinement. See Report and Recommendation, No.
16-0174 (W.D. La. . March 28, 2016) (stating that petition
then before the Court was the second petition). The first
petition was denied on its merits and the second was
dismissed as successive. It thus appears that the instant
petition is a successive petition within the meaning of 28
U.S.C. § 2244(b).
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.
104-132, 110 Stat. 1214, limits the circumstances under which
a state prisoner may file a second or successive application
for habeas relief in federal court. An application "is
'second or 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.'"
United States v. Orozco-Ramirez, 11 F.3d 862');">211 F.3d 862, 867
(5th Cir. 2000). In this instance, the Court finds the
present petition successive within the meaning of 28 U.S.C.
§ 2244(b). It contains claims that were or could have
been raised in his earlier federal petitions.
petition is second or successive, then the petitioner must
seek an order from the Fifth Circuit Court of Appeals that
authorizes this Court to consider the petition. See
28 U.S.C. § 2244(b)(3)(A). The Fifth Circuit "may
authorize the filing of a second or successive application
only if it determines that the application makes a prima
facie showing that the application satisfies the requirements
of [§ 2244(b)]." Id. § 2244(b)(3)(C).
To present a claim in a second or successive application that
was not presented in a prior application, the application
must show that it is based on: (1) newly discovered evidence
that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have
found him guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
Id. § 2244(b)(2). Before petitioner files his
application in this Court, a three-judge panel of the Fifth
Circuit Court of Appeals must determine whether the
application makes the requisite prima facie showing. See
Id. § 2244(b)(3)(A) and (B).
Fifth Circuit has not issued an order authorizing the
district court to consider this successive application for
habeas relief. Petitioner must obtain such an order before
this case is filed.
Court possesses the inherent power "to protect the
efficient and orderly administration of justice and . . . to
command respect for the court's orders, judgments,
procedures, and authority." In re Stone, 986
F.2d 898, 902 (5th Cir. 1993). Included in such inherent
power is "the power to levy sanctions in response to
abusive litigation practices." Id. Sanctions
may be appropriate when a pro se litigant has a
history of submitting multiple frivolous claims. See
Fed.R.Civ.P. 11; Mendoza v. Lynaugh, 191');">989 F.2d 191,
195-97 (5th Cir. 1993). Pro se litigants have "no
license to harass others, clog the judicial machinery with
meritless litigation, and abuse already overloaded court
dockets." Farguson v. MBank Houston, N.A., 808
F.2d 358, 359 (5th Cir. 1986). "Abusers of the judicial
process are not entitled to sue and appeal without paying the
normal filing fees -- indeed, are not entitled to sue and
appeal, period. Abuses of process are not merely not to be
subsidized; they are to be sanctioned." Free v.
United States, 1535');">879 F.2d 1535, 1536 (7th Cir. 1989).
the third time petitioner has tried to collaterally attack
his state conviction in a petition under 28 U.S.C. §
2254. The Court thus deems it appropriate to admonish or warn
petitioner that sanctions may be imposed, if he files another
petition attacking his state conviction without obtaining
leave from the Fifth Circuit. Should he persist with his
legal maneuvering, he should be barred from filing in federal
court any additional petitions or other actions relating to
his 1999 conviction without first obtaining leave of court.
IT IS RECOMMENDED that petitioner's
petition be deemed successive and that it be
TRANSFERRED to the United States Court of
Appeals for the Fifth Circuit pursuant to 28 U.S.C.
§1631 for further proceedings in accordance with the
provisions of 28 U.S.C. § 2244(b).
the provisions of 28 U.S.C. Section 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 ...