     Case: 18-10888      Document: 00514710323         Page: 1    Date Filed: 11/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 18-10837                    United States Court of Appeals

                                   c/w No. 18-10888
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                   November 5, 2018
                                                                       Lyle W. Cayce
In re: EMANUAL DELEON FIELDS,                                               Clerk


                                                 Movant

_______________________________________
cons/w 18-10888

EMANUAL DELEON FIELDS,

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:18-CV-357


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-10888     Document: 00514710323     Page: 2     Date Filed: 11/05/2018


                                  No. 18-10837
                                c/w No. 18-10888

      Emanual Deleon Fields, Texas prisoner # 01127671, was convicted of
three aggravated robberies and sentenced to 60 years imprisonment. After his
convictions were affirmed on direct appeal, Fields filed a 28 U.S.C. § 2254
petition asserting a claim under Batson v. Kentucky, 476 U.S. 79 (1986). The
district court denied his petition for habeas corpus, and this court affirmed.
Fields v. Thaler, 588 F.3d 270 (5th Cir. 2009).          Fields subsequently filed
successive § 2254 applications asserting actual innocence. This court denied
Fields authorization to file his successive petitions.
      Fields now seeks to renew the claim raised in his initial § 2254
application that the prosecution used peremptory strikes in a racially
discriminatory manner. Fields filed a motion in district court invoking Federal
Rule of Civil Procedure 60(b)(6). The district court construed Fields’s motion
as an unauthorized successive § 2254 application and transferred the matter
to this court. Fields now appeals the district court’s transfer order and moves
for authorization to file a successive § 2254 application.
      Fields previously raised his Batson claim in his initial § 2254 application,
and the claim is based on facts known at trial. Therefore, the district court
properly determined that the motion was an unauthorized successive § 2254
application. See Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir. 2009);
28 U.S.C. § 2244(b)(1). Because the district court properly concluded that
Fields’s motion constituted a successive § 2254 application, it did not err in
transferring the motion to this court. See § 2244(b)(3)(A); United States v.
Fulton, 780 F.3d 683, 686 (5th Cir. 2015).
      To obtain authorization to file a successive § 2254 application, an
applicant must demonstrate that 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 that “the factual predicate


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    Case: 18-10888     Document: 00514710323     Page: 3   Date Filed: 11/05/2018


                                  No. 18-10837
                                c/w No. 18-10888

for the claim could not have been discovered previously through the exercise of
due diligence” and that the facts, “if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2).
      Fields has not shown that his claim relies on a new factual predicate or
on a new rule of constitutional law made retroactively applicable by the
Supreme Court to his case on collateral review. See § 2244(b)(2). Fields’s
argument that this court’s grant of a certificate of appealability in Rhoades v.
Davis, 852 F.3d 422 (5th Cir. 2017), supports his Batson claim is not a
permissible basis to authorize a successive petition. To the extent that Fields
raises the identical claim that he raised in his initial § 2254 application, that
claim is not considered. See § 2244(b)(1).
      Accordingly, the transfer order of the district court is AFFIRMED.
Fields’s motion for leave to proceed in forma pauperis on appeal is DENIED.
The motion for authorization to file a successive § 2254 application is DENIED.
Fields is WARNED that future frivolous or repetitive challenges to his
conviction and sentence in this court or any court subject to this court’s
jurisdiction will result in the imposition of sanctions.




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