Propes v. Quarterman

• Decision Date: 26 June 2009
• Docket Number: No. 07-40833.,07-40833.
• Citation: 573 F.3d 225
• Parties: Johnnie R. PROPES, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

573 F.3d 225

Johnnie R. PROPES, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 07-40833.

United States Court of Appeals, Fifth Circuit.

June 26, 2009.

Johnnie R. Propes, Teague, TX, pro se.

Kathryn C. Gainor, Tommy Lee Skaggs, Austin, TX, for Quarterman.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, STEWART and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Johnnie R. Propes, Texas prisoner # 1178904, appeals the district court's dismissal of his application for a writ of habeas corpus. The court found the petition to be successive, and Propes had not received permission from this court to file a successive request for habeas relief.

We granted Propes a certificate of appealability ("COA") on two issues. One was whether an application should be considered successive when the application form given to the prisoner instructed that "only one" box be checked for the type of proceeding he sought to challenge, and also said "only judgments entered by one court may be challenged in a single petition." The other was whether law-of-the-case implications arose from a different panel's denial of Propes's motion for leave to file a successive application. We AFFIRM.

I. BACKGROUND

In June 2003, Propes was convicted of murder in Texas state court and sentenced to eighteen years in prison. The conviction was affirmed on direct appeal to the Texas Fifth District Court of Appeals. Propes v. State, No. 05-03-01122-CR, 2004 WL 1328084 (Tex.App. — Dallas June 15, 2004, pet. ref'd) (mem. op., not designated for publication). The Texas Court of Criminal Appeals refused his petition for discretionary review. Id.

Propes filed his first federal habeas application in the Western District of Texas in February 2005. In the petition, he challenged only a disciplinary proceeding and not his conviction. Propes had been disciplined for threatening harm in the prison to "an officer or any other person who is not an offender." Restrictions and loss of privileges were the penalties. The district court dismissed with prejudice in March 2006, concluding that Propes had failed to assert a deprivation of any right secured by the constitution or federal law. It is this 2005 petition that has been found to block his present habeas filing.

While the just-described federal application was pending, Propes filed a state habeas application in November 2005. There, Propes challenged his murder conviction. The Texas Court of Criminal Appeals denied that application without a written order in February 2007. In March 2007, Propes filed the present federal habeas application in the Eastern District of Texas. In this petition, Propes again challenged his murder conviction, alleging that he received ineffective assistance of counsel during his murder trial. In May 2007, a magistrate judge entered a report and recommendation on Propes's petition. Propes's application was to be dismissed as successive unless he showed, within ten days, that he had received permission from this court to file a successive petition. Propes objected to the report and recommendation, arguing that the form he had been given caused him to believe it would be improper to join other claims. The district court adopted the report and recommendation in August 2007. A final judgment was entered dismissing Propes's application without prejudice. The district court did not address Propes's arguments with respect to the form provided to habeas applicants. Propes filed a motion for a COA with the district court, which it denied.

Propes then appealed the district court's denial of a COA. Propes also filed a number of pleadings that were construed as a motion for leave to file a successive habeas petition. These additional pleadings were docketed as a separate action under a different docket number.

While Propes's motion for a COA was still pending, a panel of this court denied his motion for leave to file a successive petition. The panel noted the argument that his proposed application "should not be considered successive because his prior application did not challenge his murder conviction but rather challenged a disciplinary conviction." The panel concluded that because Propes could have raised the challenges to his conviction in his February 2005 application regarding the disciplinary matters, his second petition was successive. The panel further determined that Propes failed to explain why his claims met the requirements for filing a successive habeas application. After the panel's dismissal, Propes was granted the COA we have already described.

II. DISCUSSION

"In reviewing requests for federal habeas corpus relief, we review the district court's findings of fact for clear error, but review issues of law de novo." Myers v. Johnson, 76 F.3d 1330, 1333 (5th Cir.1996) (citation omitted).

As an initial matter, the State argues that Propes has failed to brief either of the issues certified for appeal and has therefore waived all claims. Propes's pro se pleadings are both voluminous and difficult to follow. Moreover, considerable portions of his submissions are devoted to issues not certified for appeal, including the merits of the underlying attack on his conviction. Propes's initial brief, reply brief, and supplemental reply do, however, address the two issues certified for appeal, making arguments regarding the proper resolution of these questions and citing case law in support of his position. "Briefs by pro se litigants are afforded liberal construction ...." Johnson v. Quarterman, 479 F.3d 358, 359 (5th Cir.2007). Propes's submissions do enough to avoid waiver.

A. Law-of-the-Case Doctrine

Propes argues that the prior panel's denial of leave to file a successive habeas application was improper and should not prevent the court from considering the issues in this appeal. Liberally construing Propes's filings, he further asserts that such denial would work a fundamental injustice if not corrected through this panel's reconsideration of the issue.

Propes's basic theory is that the form provided to inmates for filing habeas petitions is misleading and conflicts with this court's precedents regarding the submission of successive applications for habeas relief. We will discuss this argument in more detail later, once we analyze whether the law-of-the-case doctrine bars consideration of this issue.

The State's argument is that when the prior panel denied Propes leave to file a successive habeas application, it explicitly decided the sole issue presented now, namely, whether Propes's second habeas petition is successive. The law-of-the-case doctrine provides that an explicit or necessarily implied resolution of a legal issue by an appellate court becomes that case's law and is to be followed in the subsequent proceedings in the case. Goodwin v. Johnson, 224 F.3d 450, 457 (5th Cir.2000). The doctrine "is a rule of convenience and utility and yields to adequate reason, for the predecessor judge could always have reconsidered his initial decision so long as the case remained in his court." Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983).

There are three recognized exceptions to the law-of-the-case doctrine. Generally, when the doctrine applies, "a request to revisit a prior decision will be declined, unless (i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work ... manifest injustice." Goodwin, 224 F.3d at 457-58 (internal quotation marks and citation omitted).

The discretion to be exercised by an appellate court is affected "by the nature of the first ruling and by the nature of the issues involved. If the ruling is avowedly tentative or the issues especially important, it may be said that law-of-the-case principles do not apply." 18B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478.5, at 790 (2d ed.2002). Matters of subject-matter jurisdiction, appellate jurisdiction, or justiciability are more likely to be reconsidered because of their conceptual importance. Id. When "the initial determination was made by an appeals court's motion panel," reconsideration is particularly apt. Id. at 800, 802.

Although a motions panel of this court denied Propes leave to file a successive habeas application, Propes's present arguments regarding the form provided to him were not before the court. Moreover, the panel was exercising a gatekeeping function in ruling on Propes's request for leave to file a successive petition; it did not consider the issue as part of an adversarial proceeding.

Accordingly, to the extent that Propes's present claim implicates the law-of-the-case doctrine, we exercise our discretion to review whether Propes's habeas petition was properly dismissed as successive.

B. Successive Petitions

We first examine whether this petition, under the usual analysis, should be considered successive. If it is, then Propes's arguments concerning the form that he was given to use will become relevant.

Section 2244 of the Antiterrorism and Effective Death Penalty Act requires that a petitioner obtain an order authorizing the district court to consider a second or successive habeas petition before the petitioner may file such application. 28 U.S.C. § 2244(b)(3)(A). The requirement creates a gatekeeping mechanism for the district court's consideration of successive applications for habeas relief. Felker v. Turpin, 518 U.S. 651, 657, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). There is not, however, a definition in the AEDPA of the term "second or successive" application. Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir.2008). A petition is not second or successive merely because it follows an...