Sanford v. Director, TDCJ-CID

Filing 12

ORDER ADOPTING 5 REPORT AND RECOMMENDATIONS. The petition for a writ of habeas corpus is DISMISSED without prejudice for lack of subject matter jurisdiction. A certificate of appealability is DENIED. All motions not previously ruled on are DENIED. The Clerk of Court shall return unfiled any new petitions for a writ of habeas corpus submitted by the Petitioner regarding his conviction unless he shows that he has received permission from the Fifth Circuit to file it. Signed by Judge Leonard Davis on 11/05/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

DANIEL CHRISTOPHER SANFORD, SR.

§

VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:13cv619

ORDER OF DISMISSAL
Petitioner Daniel Christopher Sanford, Sr., an inmate confined in the Texas prison system,
proceeding pro se, filed the above-styled and numbered petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The petition was referred to United States Magistrate Judge John D. Love, who
issued a Report and Recommendation (docket entry #5) concluding that the petition should be
dismissed for lack of subject matter jurisdiction as successive. The Petitioner has filed objections.
The Petitioner is challenging his 1982 Gregg County conviction for the offense of aggravated
robbery. He argued that his trial attorney was ineffective. The petition was filed on August 29, 2013.
He previously filed a petition for a writ of habeas corpus challenging the revocation of his parole
associated with the conviction, which was denied. Sanford v. Director, TDCJ-CID, No. 6:09cv190
(E.D. Tex. April 27, 2011), aff’d, No. 11-40551 (5th Cir. July 19, 2012). Since the facts necessary to
raise the present petition occurred before the filing of the initial petition, the present petition is a
second or successive petition. The Petitioner has not shown that the Fifth Circuit has given him
permission to file a second or successive petition, thus the present petition should be dismissed for lack
of subject matter jurisdiction. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). The Petitioner’s
argument that he did not learn of the facts supporting the present petition until after his previous
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petition was dismissed is not dispositive. Such facts may lead the Fifth Circuit to grant him permission
to file a second or successive petition, but this Court may not consider the petition in the absence of
permission from the Fifth Circuit.
The Report and Recommendation of the Magistrate Judge, which contain his 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 Petitioner, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct. Thus 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 petition for a writ of habeas corpus is DISMISSED without prejudice for
lack of subject matter jurisdiction. It is further
ORDERED that a certificate of appealability is DENIED. It is further
ORDERED that all motions not previously ruled on are DENIED. It is finally
ORDERED that the Clerk of Court shall return unfiled any new petitions for a writ of habeas
corpus submitted by the Petitioner regarding his conviction unless he shows that he has received
permission from the Fifth Circuit to file it.
So ORDERED and SIGNED this 5th day of November, 2013.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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