Grimes v. Director, TDCJ-CID

- 1 -
No. 6:25-cv-00408
John A. Grimes,
Petitioner,
v.
Director, TDCJ-CID,
Respondent.
O R D E R
Petitioner brought this habeas action to challenge his murder
conviction. Doc. 1. The case was referred to a magistrate judge,
who issued a report recommending that the petition be dismissed
without prejudice as an unauthorized second or successive peti-
tion under 28 U.S.C. § 2244(b) and that a certificate of appeala-
bility be denied. Doc. 3 at 5. Petitioner filed written objections but
does not deny that this petition raises the same claims as a previ-
ous petition that was dismissed with prejudice. See Doc. 5.
The court reviews the objected-to portions of a magistrate
judge’s report and recommendation de novo. 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). However, the objections
“must specifically identify those findings objected to. Frivolous,
conclusive or general objections need not be considered by the
district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th
Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Furthermore, a party’s entitlement to de novo review does not en-
title it to raise arguments that were not presented to the magis-
trate judge without a compelling reason. See Cupit v. Whitley, 28
F.3d 532, 535 & n.5 (5th Cir. 1994).
Petitioner’s first objection is that the prohibition against sec-
ond or successive habeas petitions does not apply where the first
petition was dismissed as untimely rather than denied on the mer-
its. This objection lacks merit. When a § 2254 petition is
Case 6:25-cv-00408-JCB-JDL Document 7 Filed 01/09/26 Page 1 of 3 PageID #:
<pageID>

- 2 -
dismissed as untimely, a second petition raising the same claims
is successive. In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009) (per
curiam).
Petitioner’s second objection is that the bar against successive
habeas petitions does not apply to petitions claiming actual inno-
cence or ineffective assistance of counsel. This argument is legally
incorrect. To bring a successive habeas petition, the petitioner
must obtain authorization from a three-judge panel of the appro-
priate court of appeals. Burton v. Stewart, 549 U.S. 147, 152–53
(2007) (per curiam). Furthermore, the claim must satisfy “one of
the two grounds raised in § 2244(b)(2).” Id. at 153. Those grounds
are (1) a new retroactive constitutional right announced by the
U.S. Supreme Court, and (2) newly discovered evidence that
could not have been discovered earlier with due diligence and
would establish by clear and convincing evidence that no reason-
able factfinder would have found the petitioner guilty. 28 U.S.C.
§ 2244(b)(2)(A)–(B). Here, petitioner has not presented an order
from the U.S. Court of Appeals for the Fifth Circuit authorizing
him to bring a successive habeas petition. Moreover, petitioner
has not alleged a new constitutional right or newly discovered ev-
idence.
Petitioner’s third objection essentially argues that he should
be allowed to bring a second habeas petition despite the bar on
successive petitions. However, this court lacks jurisdiction to de-
termine whether the petitioner may file a second habeas petition.
Burton, 549 U.S. at 152 (holding that “because the . . . petition is
a second or successive petition . . . the District Court never had
jurisdiction to consider it in the first place” (cleaned up)). Peti-
tioner must first seek that authorization from the U.S. Court of
Appeals for the Fifth Circuit. 28 U.S.C. § 2244(b)(3)(A).
Having reviewed the report de novo and being satisfied that it
contains no error, the court accepts the report’s findings and rec-
ommendations. Petitioner’s objections are overruled. This case is
dismissed without prejudice to petitioner’s ability to seek
Case 6:25-cv-00408-JCB-JDL Document 7 Filed 01/09/26 Page 2 of 3 PageID #:
<pageID>

- 3 -
authorization from the U. S. Court of Appeals for the Fifth Circuit
to file a successive habeas petition.
So ordered by the court on January 9, 2026.
J. CAM PB EL L BA RK ER
United States District Judge
Case 6:25-cv-00408-JCB-JDL Document 7 Filed 01/09/26 Page 3 of 3 PageID #:
<pageID>