Hargrave v. Guerrero, Director, TDCJ-CID

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JIM HARGRAVE,
Petitioner,
VS.
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CIVIL ACTION NO. 2:26-CV-00045
ERIC GUERRERO, DIRECTOR, TDCJ-
CID,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner is an inmate in the Texas Department of Criminal Justice (“TDCJ”) and
is currently incarcerated at the Bill Clements Unit in Amarillo, Texas. Pending is his
second federal habeas petition challenging his 1995 Nueces County conviction for capital
murder. For the reasons stated below, the undersigned respectfully RECOMMENDS this
case be DISMISSED as second or successive and a Certificate of Appealability (“COA”)
be DENIED.
I. JURISDICTION
The Court has jurisdiction over the subject matter and the parties pursuant to 28
U.S.C. §§ 2241 and 2254. A habeas action may be filed either in the district where
petitioner is in custody or in the district in which petitioner was convicted. 28 U.S.C. §
2241(d); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). Jurisdiction is proper
in this Court because Petitioner was convicted in Nueces County, Texas, which is within
United States District Court
Southern District of Texas
ENTERED
March 18, 2026
Nathan Ochsner, Clerk
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the Southern District of Texas. 28 U.S.C. § 124(b)(6); 28 U.S.C. § 2241(d); Wadsworth,
235 F.3d at 961. This case has been referred to the undersigned pursuant to 28 U.S.C. §
636.
II. BACKGROUND
Petitioner filed his first unsuccessful federal habeas petition in April 2008
challenging the same conviction as his present petition. Hargrave v. Smith, No. 2:08-cv-
129 (S.D. Tex. Sept. 8, 2008) (Final Judgment and Order dismissing case as time barred).
The M & R and Order filed in Petitioner’s first case contain a recitation of the procedural
history of Petitioner’s underlying conviction. Hargrave, No. 2:08-cv-129 at D.E. 22, Page
2 and D.E. 26, Pages 1-2. In short, pursuant to a plea agreement in which the State agreed
not to seek the death penalty, Petitioner waived his right to a jury trial and, on April 26,
1996, he pled guilty to capital murder in the 94th Judicial District in Nueces County, Texas.
Id.
Petitioner’s first federal habeas petition was denied as time barred on September 8,
2008. Id. at D.E. 26 and D.E. 27. Petitioner’s late-filed appeal was dismissed April 8,
2010. (D.E. 35). Further, his Motion for Reconsideration was denied by this Court on
January 13, 2011. (D.E. 40). Petitioner filed this pending second federal habeas petition
on January 29, 2026. (D.E. 1, Page 15).
III. DISCUSSION
Rule 4 of the Rules Governing Section 2254 Cases in federal district courts
authorizes a habeas corpus petition to be summarily dismissed when it appears the petition
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is not entitled to relief. The Fifth Circuit recognized a district court’s authority under Rule
4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading
by the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (The Court has a duty to
screen out frivolous habeas applications eliminating respondent’s burden to file an
unnecessary answer). From the face of the instant petition and court records, it is apparent
this is a second or successive petition. See 28 U.S.C. § 2244(b)(2) (requiring dismissal of
a second or successive petition filed by a state prisoner pursuant to 28 U.S.C. § 2254).
A claim presented in a second or successive application that was not presented in a
prior application must be dismissed unless: (1) the applicant shows the claim relies on a
new rule of constitutional law made retroactive to cases on collateral review by the
Supreme Court that was previously unavailable; or (2) the factual predicate for the claim
could not have been discovery previously through the exercise of due diligence, and but
for the constitutional error, no reasonable fact finder would have found the applicant guilty.
28 U.S.C. § 2244(b)(2). Further, before a second or successive application is filed in the
district court, the applicant must move in the court of appeals for an order authorizing the
district court to consider the application. 28 U.S.C. § 2244(b)(3)(A).
This Court has already determined that Petitioner’s previous 2008 federal habeas
application was time barred and denied a certificate of appealability. More specifically,
the Court determined Petitioner’s deadline to file a § 2254 petition expired on May 27,
1997 and he is not entitled to any form of tolling. (D.E. 26). Further, Petitioner cites to no
new precedent in support of his claim nor has he obtained permission to file a successive
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petition from the Fifth Circuit Court of Appeals. See 28 U.S.C. § 2244 (b)(3)(A);
Hernandez v. Thaler, 630 F.3d 420, 427 (5th Cir. 2011) (when a “filing is construed as a
second or successive habeas petition, then it must be dismissed) (citations omitted); Leal
Garcia v. Quaterman, 573 F.3d 214, 219 (5th Cir. 2009) (“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.”) Further, the allegations raised in Petitioner’s latest petition
either were or could have been raised in his prior petition. Leal, 573 F.3d at 219 (Second
or successive petitions include a petition raising a claim “that was or could have been raised
in an earlier petition”).
Because Petitioner has presented neither argument nor evidence indicating he will
be able to make a prima facie showing his application satisfies the statute,1 dismissal
without prejudice would be more efficient and would better serve the interests of justice
than a transfer to the Fifth Circuit, which has previously dismissed Petitioner’s appeal.
Therefore, it is respectfully recommended that this case be DISMISSED.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the Court of Appeals from a final order in a habeas
1Petitioner will have to demonstrate to the Fifth Circuit that his claim meets the requirements set
forth in 28 U.S.C. § 2244(b)(2) as stated above.
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corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). Although Petitioner has not yet filed a notice of appeal, it is
respectfully recommended that this Court nonetheless address whether he would be entitled
to a certificate of appealability (“COA”). A district court ruling on a petitioner’s relief may
sua sponte rule on a COA because it “is in the best position to determine whether the
petitioner has made a substantial showing of a denial of a constitutional right on the issues
before that court. Further briefing and argument on the very issues the court has just ruled
on would be repetitious.” Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per
curiam).
A COA “may issue...only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As to claims
the Court rejects solely on their merits, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As to claims the Court rejects solely
on procedural grounds, the Petitioner must show both that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. (emphasis added).
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In Petitioner’s case, it is recommended that the Court find his claims be dismissed
on procedural grounds. Reasonable jurists would not find that Petitioner has stated a valid
claim of denial of a constitutional right, or the finding that the petition is second or
successive is debatable. If the District Judge orders Petitioner’s habeas petition be denied
and Petitioner seeks a COA in order to proceed with his case, it is further recommended
the Court find a COA be denied because he has not made the necessary showing for
issuance.
V. RECOMMENDATION
For the reasons discussed above, it is respectfully RECOMMENDED this case be
DISMISSED as second or successive. Should Petitioner seek a COA, it is further
RECOMMENDED it be DENIED.
Respectfully submitted on March 17, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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