Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mack v. Warden

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

June 5, 2019

JIMMY JAMES MACK, Petitioner
v.
WARDEN, Respondent

          DEE D. DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         Because 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.

         I. Background

         Mack 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.

         Mack 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).

         Mack 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.

         In his § 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).

         II. Law and Analysis

         Mack 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).

         According 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. 1999).

         Nonetheless, 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 applies.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.