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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-00470
Conference Calendar

IN RE: TONY EPPS,

Movant.
---------------------
Transfer from the United States District Court
for the Southern District of Texas
USDC No. H-96-2140
----------------------
October 22, 1997
Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.
BY THE COURT:
Tony Epps pleaded guilty and was convicted in state court of
burglary of a habitation, aggravated assault, and attempted capital
murder. He was sentenced to life in prison, and his convictions
and sentence were affirmed. Epps did not file a petition for
discretionary review. He did, however, file six habeas petitions
in state court challenging his convictions. One was not acted upon
because a direct appeal was pending. The other five were denied
without written order.
Subsequently, Epps filed a habeas petition in federal district
court pursuant to 28 U.S.C. з 2254 challenging the same convictions
on the basis that trial counsel was ineffective because he failed
to investigate the facts, interview witnesses, and inform Epps that

a state witness would be unable to identify him. Respondent, the
State of Texas, filed a motion for summary judgment, and the
district court denied the habeas application and granted the motion
for summary judgment. Epps appealed and the district court
recommended denial of a certificate of probable cause (CPC). This
court denied a CPC.
Epps then filed another habeas petition pursuant to з 2254.
He alleged that trial counsel misled him by erroneously informing
him that he could receive probation; insisting that he waive his
right to jury trial; and causing him to reject the state's offer of
a 45-year sentence in exchange for a guilty plea. He also
contended that the trial court abused its discretion at sentencing
by admitting evidence that proved elements not charged in the
indictment.
The district court has transferred the habeas petition to this
court for a determination whether the successive petition should be
allowed. See 28 U.S.C. зз 2244(a) and (b)(3)(C). Epps has not
filed in this court a motion for authorization to file a successive
з 2254 petition in district court. See 28 U.S.C. з 2244(b)(3)(A).
Two circuit courts have addressed the procedure to be used
when a district court transfers to the court of appeals a
successive petition for habeas corpus relief from a state prisoner
or a successive з 2255 motion from a federal prisoner. Those
circuit courts have directed their clerk's offices to notify the
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petitioner that a motion for authorization must be filed with the
court of appeals pursuant 28 U.S.C. з 2244(b)(3). The clerk's
notice explains the substantive requirements of such a motion and
advises the prospective movant that (1) a motion pursuant to
з 2244(b)(3) must be filed with the court of appeals within a
specified time from the date of the clerk's notice and (2) failure
to do so timely will result in the entry of an order denying
authorization. See Coleman v. United States, 106 F.3d 339, 341
(10th Cir. 1997); Liriano v. United States, 95 F.3d 119, 123 (2d
Cir. 1997).
We find these procedures appropriate and accordingly adopt
them. The Clerk of this court is directed to notify Epps (1) that
he must file in this court a motion pursuant to з 2244(b)(3) within
30 days from the date of the Clerk's notice, and (2) if he fails to
file such a motion within that time, an order will be entered
denying authorization. The Clerk shall further notify Epps that,
to be successful, his motion must make a prima facie showing that
either (1) his claim relies on a new rule of constitutional law
that was made retroactive by the Supreme Court and was previously
unavailable, or (2) the factual predicate for the claim could not
have been discovered previously through due diligence and the
underlying facts, if proved by clear and convincing evidence, would
be sufficient to establish that a reasonable trier of fact would
not have found the applicant guilty of the underlying offense. See
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зз 2244(b)(2) and (b)(3)(C). Finally, the Clerk shall instruct
Epps that the following documents should be attached to and filed
with his з 2244(b)(3) motion:
(1) A copy of the proposed з 2254 petition for which he is
requesting authorization to file in the district court;
(2) copies of (a) all previous з 2254 petitions challenging
the judgment or sentence received in any conviction for which he is
currently incarcerated; (b) all previous з 2241 petitions
challenging the terms and conditions of his imprisonment; and
(c) any complaint, regardless of title, that was subsequently
treated by the district court as a з 2254 motion or a з 2241
petition;
(3) all court opinions and orders disposing of the claims
advanced in (2), above; and
(4) all magistrate judge's reports and recommendations issued
in connection with claims advanced in (2), above.
If, after due diligence and through no fault of his own, Epps
is unable to procure any of the documents described above, he
should submit, in lieu of such documents, an affidavit describing
the steps he has taken in efforts to procure them and explaining
why he was unsuccessful.
The thirty-day limit within which this court must address
Epps's з 2244(b)(3) motion, see з 2244(b)(3)(D), will begin to run
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