McCreary v. Director, TDCJ-CID

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Report and Recommendation 7 is ADOPTED. 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 mo tions not previously ruled on are hereby DENIED. The Clerk of Court shall return unfiled any new petitions for a writ of habeascorpus submitted by Petitioner regarding his conviction unless he shows that he received permission from the Fifth Circuit to file it. Signed by Judge Michael H. Schneider on 10/09/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JODY FORD MCCREARY, #1694118

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:15cv839

ORDER OF DISMISSAL
Petitioner Jody Ford McCreary, an inmate confined in the Texas prison system, proceeding
pro se, filed the above-styled and numbered petition for a writ of habeas corpus challenging his
Smith County conviction for tampering with physical evidence. The petition was referred to United
States Magistrate Judge K. Nicole Mitchell, who issued a Report and Recommendation concluding
that the petition should be dismissed for lack of subject matter jurisdiction because Petitioner had
not received permission from the Fifth Circuit to file a successive petition. Petitioner has filed
objections.
Petitioner has filed two petitions for a writ of habeas corpus challenging his conviction in this
Court. His last petition was dismissed as successive, and the Fifth Circuit denied his request for a
certificate of appealability. Magistrate Judge Mitchell correctly concluded that the present petition
should be dismissed for lack of subject matter jurisdiction. Petitioner argues that his petition should
be considered because he is actually innocent of the crime. His distinction, however, lacks merit
because he still must obtain permission from the Fifth Circuit to file a successive petition. The Fifth
Circuit has specifically rejected the type of argument that Petitioner presents in his objections.
Williams v. Thaler, 602 F.3d 291, 305 (5th Cir. 2010) (“[T]he district court did not have jurisdiction
to consider [petitioner’s] claim of actual innocence.”).
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
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made a de novo review of the objections raised by Petitioner to the Report, the Court is of the
opinion that the findings and conclusions of the Magistrate Judge are correct and the objections of
Petitioner 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 Report and Recommendation (docket entry #7) is ADOPTED. It is
further
.

ORDERED that 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 hereby DENIED. It is finally
ORDERED that the Clerk of Court shall return unfiled any new petitions for a writ of habeas
corpus submitted by Petitioner regarding his conviction unless he shows that he received permission
from the Fifth Ciruit to file it.
It is SO ORDERED.
SIGNED this 9th day of October, 2015.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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