James Loften v. Ct of Cr Appeals of TX-Austin, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [15-51036 Vacated and Remanded] Judge: EGJ, Judge: WED, Judge: LHS. Mandate pull date is 03/08/2017; granting motion for certificate of appealability filed by Appellant Mr. James Eric Loften [8105712-2]; granting motion to proceed IFP filed by Appellant Mr. James Eric Loften [8151129-2]; denying motion to appoint counsel filed by Appellant Mr. James Eric Loften [8193351-2]; denying, without prejudice to his filing the motion in the district court, motion for an evidentiary hearing and for the issuance of a subpoena duces tecum and for out-of-state witnesses filed by Appellant Mr. James Eric Loften [8420192-2] [15-51036]

Case: 15-51036

Document: 00513877260

Page: 1

Date Filed: 02/15/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 15-51036

FILED
February 15, 2017
Lyle W. Cayce
Clerk

JAMES ERIC LOFTEN,
Petitioner-Appellant
v.

COURT OF CRIMINAL APPEALS OF TEXAS – AUSTIN; LIBERTY
COUNTY JUDICIARY; STATE OF TEXAS,
Respondents-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:15-CV-776
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Joseph Eric Loften, Texas prisoner # 616132, seeks a certificate of
appealability (COA) to challenge the district court’s dismissal for lack of
jurisdiction of his 28 U.S.C. § 2254 habeas petition based on it being a
successive application barred by earlier sanction orders in other proceedings.
Loften asserts that he is challenging for the first time his November 2013
conviction for possession of a controlled substance with intent to deliver and
his 99-year term of imprisonment.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51036

Document: 00513877260

Page: 2

Date Filed: 02/15/2017

No. 15-51036
Reasonable jurists would debate whether the district court erred in
dismissing Loften’s habeas petition as successive and subject to the prior
sanctions imposed against Loften in earlier proceedings challenging a different
conviction or a finding of guilt in a disciplinary proceeding. Additionally, “the
district court pleadings, the record, and the COA application demonstrate that
reasonable jurists could debate whether the petitioner has made a valid claim
of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
Accordingly, IT IS ORDERED that Loften’s motion for a COA is
GRANTED; his motion for leave to proceed in forma pauperis is GRANTED;
the district court’s judgment dismissing his § 2254 habeas petition as
successive and barred by sanctions is VACATED; and the matter is
REMANDED for further proceedings. See Whitehead v. Johnson, 157 F.3d 384,
387-88 (5th Cir. 1998). Loften’s motion for appointment of counsel is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). His motion for
an evidentiary hearing and for the issuance of a subpoena duces tecum and
subpoenas for out-of-state witnesses is DENIED without prejudice to his filing
the motion in the district court.

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