Ellington v. Director, TDCJ-CID

Filing 52

ORDER OF DISMISSAL adopting 42 Report and Recommendation. ORDERED that the above-styled petitions for a writ of habeas corpus are DENIED and the cases are DISMISSED with prejudice. It is further ORDERED that a certificate of appealability is DENIED. It is finally ORDERED that all motions by either party not previously ruled on are hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 8/21/2019. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
PETER JOHN ELLINGTON, #1819234

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:16cv666
CONSOLIDATED WITH
CIVIL ACTION NO. 4:16cv667

ORDER OF DISMISSAL
Petitioner Peter John Ellington, a prisoner confined in the Texas prison system, filed the
above-styled and numbered petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petitions were referred to United States Magistrate Judge Christine A. Nowak, who issued a Report
and Recommendation (Dkt. #42) concluding that the petitions should be denied. Ellington has filed
objections (Dkt. #50).
Ellington is in custody pursuant to Collin County convictions for aggravated sexual assault
of a child (Count I) and indecency with a child (Count II), in Case Number 416-82711-09. Pursuant
to an open plea, Ellington pled guilty to both charges. On September 27, 2012, Ellington was
sentenced to 54 years of imprisonment for aggravated sexual assault of a child and 20 years of
imprisonment for indecency with a child, with the sentences running consecutively. The convictions
were affirmed as modified. Ellington v. State, No. 05-12-01625-CR, 2013 WL 6405486 (Tex. App. Dallas Dec. 5, 2013, pet. ref’d). On July 27, 2016, the Texas Court of Criminal Appeals denied his
state applications for a writ of habeas corpus without written order on the findings of the trial court
without a hearing.

The present petitions were filed on August 25, 2016. Ellington brings the following grounds
for relief:
1.

Actual innocence;

2.

Involuntary plea;

3.

Ineffective assistance of trial counsel;

4.

Prosecutorial misconduct;

5.

Multiple punishments for the same act/double jeopardy;

6.

Ineffective assistance of appellate counsel for failing to raise a double jeopardy
argument; and

7.

Ineffective assistance of trial counsel for forbidding him to inform the court he is a
citizen of Canada.

The Magistrate Judge thoroughly addressed each claim and found that they lack merit. In particular,
Ellington failed to satisfy the requirements of 28 U.S.C. § 2254(d). Ellington’s objections are simply
reassertions of the claims raised in his petitions. He has not shown that the Magistrate Judge’s
findings and conclusions were erroneous in any respect.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Ellington to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Ellington’s objections are
without merit. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate
Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the above-styled petitions for a writ of habeas corpus are DENIED and the
cases are DISMISSED with prejudice. It is further
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ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions by either party not previously ruled on are hereby DENIED.

SIGNED this 21st day of August, 2019.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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