United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 filed by pro se Petitioner Jimmy James
Mack (“Mack”) (#381884). Mack is an inmate in the
custody of the Louisiana Department of Corrections,
incarcerated at the Louisiana State Penitentiary in Angola,
Louisiana. Mack challenges his conviction in the 9th Judicial
District Court, Rapides Parish.
Mack's Petition is second and successive, and Mack has
not obtained authorization to file a second or successive
petition from the United States Court of Appeals for the
Fifth Circuit, the Petition (Doc. 1) should be DISMISSED for
lack of jurisdiction.
was convicted of attempted second degree murder and armed
robbery. He was sentenced to a total of 59 years of
imprisonment. State v. Mack, 2008-487 (La.App. 3
Cir. 11/5/08). Mack's conviction and sentence were
affirmed on appeal. Id. Mack filed an application
for post-conviction relief, which was denied, as were the
related writ applications. State ex rel. Mack v.
State, 2011-2032 (La. 6/22/12); 90 So.3d 450.
filed a Petition for Writ of Habeas Corpus under § 2254
in this Court, which was denied. (1:12-cv-1998, Doc. 28). The
Fifth Circuit denied writs. (1:12-cv-1998, Doc. 34).
then filed another post-conviction application, which was
also denied. The Louisiana Supreme Court denied writs because
the application was untimely filed in the trial court.
State ex rel. Mack v. State, 2017-1388 (La.
10/29/18); 255 So.3d 579.
§ 2254 Petition (Doc. 1), Mack claims trial counsel was
ineffective in failing to subpoena Officer Elliott Fruge to
impeach the prosecution's only witness. (Doc. 1-2, p. 6).
Law and Analysis
previously filed a § 2254 Petition in this Court, which
was adjudicated on the merits. (1:12-cv-1998). Mack now
raises a claim in a new § 2254 Petition that could have
been raised in the earlier Petition. Thus, Mack's
Petition is second or successive. See In re Cain,
137 F.3d 234, 235 (5th Cir. 1998). Mack is required to obtain
authorization from the Fifth Circuit to file a 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).
to the record and the Fifth Circuit, Mack has not obtained
that authorization. Until such time as Mack 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.
Mack claims the AEDPA in inapplicable because it only applies
to capital cases. (Doc. 1-2, p. 8). This argument has been
flatly rejected by the Fifth Circuit. Young v.
Vannoy, 690 Fed.Appx. 199 (5th Cir. 2017) (“It is
well established that the AEDPA applies to ‘all habeas
corpus proceedings in the federal courts' filed after its
enactment, even those submitted by individuals convicted of
noncapital offenses.”) (quoting Lindh v.
Murphy, 521 U.S. 320, 326 (1997) (applying the AEDPA to
noncapital case)). Precedent binds this Court. The AEDPA