Calhoun v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
WARREN TYRONE CALHOUN, JR., §
TDCJ No. 02121308, §
§
Petitioner, §
§ No. 3:26-cv-1075-X-BN
V. §
§
DIRECTOR, TDCJ-CID, §
§
Respondent. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Petitioner Warren Tyrone Calhoun, Jr., convicted of possession with intent to
deliver a controlled substance in Dallas County, Texas, submitted a pro se application
for a writ of habeas corpus. See Dkt. No. 3. And United States District Judge Brantley
Starr referred Calhoun’s case to the undersigned United States magistrate judge for
pretrial management under 28 U.S.C. § 636(b) and a standing order of reference.
Calhoun originally challenged his conviction through a petition for writ of
habeas corpus in 2024, which was dismissed as untimely under Rule 4 of the Rules
Governing Section 2254 Cases. See Calhoun v. Dir., TDCJ-CID, No. 3:24-cv-2398-S-
BT, 2024 WL 5323853 (N.D. Tex. Nov. 26, 2024), rec. accepted, 2025 WL 92387 (N.D.
Tex. Jan. 13, 2025). Calhoun appealed to the Fifth Circuit Court of Appeals but was
denied a certificate of appealability. See Calhoun v. Guerrero, No. 25-10294, slip op.
(5th Cir. July 11, 2025).
And the undersigned enters these findings of fact, conclusions of law, and
recommendation that, because Calhoun’s petition is an unauthorized successive
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habeas application, the Court should dismiss the application without prejudice to
Calhoun’s right to seek authorization from the Fifth Circuit to file a successive habeas
application.
Discussion
“A state prisoner is entitled to one fair opportunity to seek federal habeas relief
from his conviction. But he may not usually make a ‘second or successive habeas
corpus application.’” Banister v. Davis, 590 U.S. 504, 507 (2020) (quoting 28 U.S.C.
§ 2244(b)). As such, Section 2244
lays out the requirements for filing successive petitions, serving as gate-
keeper by preventing the repeated filing of habeas petitions that attack
the prisoner’s underlying conviction. The statute does not define “second
or successive,” however, and we have made clear that a petition is not
“second or successive” merely because it is numerically second.
...
Later habeas petitions attacking the same judgment that was attacked
in a prior petition tend to be labeled successive and must meet the
standards for authorization under § 2244. In contrast, later habeas
petitions attacking distinct judgments, administration of an inmate’s
sentence, a defective habeas proceeding itself, or some other species of
legal error – when the error arises after the underlying conviction – tend
to be deemed non-successive. In essence, if the purported defect existed,
or the claim was ripe, at the time of the prior petition, the later petition
is likely to be held successive even if the legal basis for the attack was
not. If, however, the purported defect did not arise, or the claim did not
ripen, until after the conclusion of the previous petition, the later
petition based on that defect may be non-successive.
Leal Garcia v. Quarterman, 573 F.3d 214, 220, 222 (5th Cir. 2009) (footnotes omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “requires a
prisoner to obtain authorization from the federal appellate court in his circuit before
he may file a ‘second or successive’ petition for relief in federal district court. Without
such authorization, the otherwise-cognizant district court has no jurisdiction to
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entertain a successive § 2254 petition.” Id. at 219 (footnotes omitted).
As discussed above, Calhoun previously exercised his “one fair opportunity to
seek federal habeas relief from his conviction,” Banister, 590 U.S. at 507, and his
current claims allege defects in that conviction that “existed ... at the time of the [first
federal] petition ... even if the legal basis for the [current] attack was not” known to
Calhoun when he filed an initial Section 2254 application, Leal Garcia, 573 F.3d at
222; accord In re Will, 970 F.3d 536, 540 (5th Cir. 2020) (per curiam). The fact that
Calhoun’s prior habeas petition was dismissed as barred by limitations rather than
on the merits does not change this analysis. See In re Flowers, 595 F.3d 204, 205 (5th
Cir. 2009) (second application was successive even though first application was
dismissed as time barred where claims “were or could have been raised in” first
application).
Calhoun therefore presents claims that are successive. And his failure to first
obtain authorization from the court of appeals under 28 U.S.C. § 2244(b)(3) deprives
the district court of jurisdiction to consider the habeas application. See Leal Garcia,
573 F.3d at 219 (“AEDPA requires a prisoner to obtain authorization from the federal
appellate court in his circuit before he may file a ‘second or successive’ petition for
relief in federal district court. Without such authorization, the otherwise-cognizant
district court has no jurisdiction to entertain a successive § 2254 petition.” (footnotes
omitted)).
The Court could cure this want of jurisdiction by transferring this application
to the Fifth Circuit for appropriate action. See 28 U.S.C. § 1631. But given that
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Calhoun’s previous petition was dismissed as untimely, “a dismissal without
prejudice appears more efficient and better serves the interests of justice than a
transfer in this instance.” United States v. King, Nos. 3:97-cr-0083-D-01 & 3:03-cv-
1524-D, 2003 WL 21663712, at *1 (N.D. Tex. July 11, 2003).
Recommendation
The Court should dismiss Petitioner Warren Tyrone Calhoun, Jr’s pro se
application for writ of habeas corpus under 28 U.S.C. § 2254 [Dkt. No. 3] without
prejudice to his right to file, under 28 U.S.C. § 2244(b)(3), a motion for authorization
to file a successive Section 2254 application in the United States Court of Appeals for
the Fifth Circuit.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
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United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: April 8, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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