United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 26, 2004
Charles R. Fulbruge III
Clerk
No. 04-70044
DOMINIQUE JEROME GREEN,
Plaintiff-Appellee,
versus
HARRIS COUNTY, District Attorney’s Office;
HOUSTON POLICE DEPARTMENT; DOUG DRETKE, Director,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(H-04-4086)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:
Dominique Green’s execution is set for today, 26 October 2004.
Claiming documents found in the Houston, Texas, Police Department
Crime Lab may have some bearing on his case, Green filed, inter
alia, a civil rights action in district court pursuant to 42 U.S.C.
§ 1983. The district court held correctly: the requested relief
can be obtained only through a successive habeas petition; and it
lacked jurisdiction, because this court had not granted Green the
requisite authorization to file a successive petition in district
court. See 28 U.S.C. § 2244(b)(3).
Today, however, the district court granted a stay of
execution, giving Green 14 days to request such authorization from
our court. The State appeals from that stay-order, seeking to have
it vacated. Green has responded, but has neither filed a notice of
appeal nor applied for authorization to file a successive habeas
petition.
The motion to vacate the stay is GRANTED. The district court,
lacking jurisdiction over Green’s claimed § 1983 action (successive
habeas petition), lacked jurisdiction to grant the stay. See
Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir. 2003). In the
alternative, there is no likelihood that Green will succeed on the
merits: the claim he seeks to present is procedurally barred, the
Texas Court of Criminal Appeals today having dismissed his state
successive habeas petition for abuse of the writ, Ex Parte
Dominique Jerome Green, WR-45,219-03; and, in the alternative,
Green cannot meet the requirements for making the requisite prima
facie showing in order to be permitted to file a successive habeas
petition, see, e.g., 28 U.S.C. § 2244(b)(2)(B); Green v. State, 934
S.W. 2d 92 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200
(1997).
STAY VACATED
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DeMOSS, specially concurring:
Because the district court was “without jurisdiction to consider a
request for stay of execution in connection with a successive
habeas petition in the absence of express authorization from this
Court pursuant to 28 U.S.C. § 2244(b)(3),” Kuttzner v. Cockrell,
303 F.3d 333, 338 (5th Cir. 2002), I believe we are without
appellate jurisdiction to consider the State’s notice of appeal and
subsequent motion to vacate the district court’s order granting
Green a stay. Accordingly, our order should not be a granting of
the State’s motion to vacate (a motion over which we have no
jurisdiction), but rather an order dissolving the stay solely on
the basis that the district court lacked the jurisdiction to do so.
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