Caldwell v. The Court of Criminal Appeals of Texas
Filing
5
ORDER CONSTRUING PETITIONER'S "WRIT OF MANDAMUS RELIEF PURSUANT TO 28 USC 1361" AS A PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY, MEMORANDUM OPINION and ORDER DENYING A CERTIFICATE OF APPEALABILITY... the petition o f petitioner for a writ of habeas corpus pursuant to 28 u.s. c. §2254 be, and is hereby, dismissed for lack of jurisdiction... a certificate of appealability be, and is hereby, denied... see Order for further specifics. (Ordered by Judge John McBryde on 10/10/2012) (krg)
U.S. DISTRICT COURT
NORTHERN Dr STRICT OF TEXAS
IN THE UNITED STATES DISTRICT CO RT.
FOR THE NORTHERN DISTRICT OF TE S
FORT WORTH DIVISION
FILED
OCT
10•
§
Petitioner,
CLERK, U.S. DISTRICT COURT
By __________________
§
TIMMY RAY CALDWELL,
Deputy
§
§
v.
§
No. 4:12-CV-707-A
§
RICK THALER, Director, 1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
ORDER CONSTRUING PETITIONER'S "WRIT OF MANDAMUS RELIEF PURSUANT
TO 28 U.S.C. § 1361" AS A PETITION FOR WRIT OF HABEAS
CORPUS BY A PERSON IN STATE CUSTODY,
MEMORANDUM OPINION
and
ORDER DENYING A CERTIFICATE OF APPEALABILITY
On October 4, 2012, the clerk of Court accepted for filing
Petitioner Timmy Ray Caldwell's "Writ of Mandamus Relief Pursuant
to 28 U.S.C.
§
1361," pending judicial review of the document and
exhibits thereto.
Petitioner is a state prisoner confined under
two state court convictions.
His request for release effective
immediately based on a void 2001 cumulation order is cognizable
1
Petitioner designates the Court of Criminal Appeals of Texas as
Respondent. However, in a habeas action the proper respondent is the
immediate custodian of the petitioner.
Petitioner is currently in custody of
the Texas Department of Criminal Justice, Correctional Institutions Division
(TDCJ), in the Powledge Unit in Palestine, Texas. Therefore, the correct
Respondent is Rick Thaler, the Director of the Texas Department of Criminal
Justice, Correctional Institutions Division. The clerk is directed to docket
and change the designation of the Respondent accordingly.
only in the context of a habeas corpus action pursuant to 28
U.S.C.
§
2254.
See Preiser v. Rodriguez, 411 U.S. 475, 488-90
(1973)
(when a litigant seeks immediate or speedier release from
confinement, the appropriate cause of action is a petition for
writ of habeas corpus); Wilson v. Foti, 832 F.2d 891, 892 (5th
Cir. 1987)
(same); see also Carson v. Johnson, 112 F.3d 818, 820
(5th Cir. 1997); Orellana v. Kyle, 65 F. 3d 29, 31 (5th Cir. 1995)
(per curiam).
Moreover, federal courts are without power to
issue writs of mandamus against state officers in the performance
of their duties where mandamus is the only relief sought.
Moye
v. Clerk, DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th
Cir. 1973).
Accordingly, petitioner's "Writ of Mandamus Relief
Pursuant to 28 U.S.C.
petition under
§
§
1361" is construed as a habeas corpus
2254.
Having so construed petitioner's pleading and the relief
sought by petitioner, the court has concluded that the petition
should be summarily dismissed as successive.
No service has
issued upon respondent.
I.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is serving a life sentence on his 2000 conviction
for burglary of a habitation in cause number 0478240 and a 30year sentence on his 2001 conviction for aggravated robbery in
2
Tarrant County, Texas.
(Pet. Apps. E & F)
Petitioner has
previously sought federal postconviction habeas relief
challenging the same convictions.
Caldwell v. Cockrell, No.
4:02-CV-326-A (burglary of a habitation)
(dismissed, in part, and
denied, in part); Caldwell v. Cockrell, Civil Action No. 4:03-CV100-Y (aggravated robbery)
(denied on the merits) . 2
In the instant petition, petitioner challenges the trial
court's cumulation order in the aggravated robbery case in cause
number 0772847, wherein the court ordered his 30-year sentence to
begin after service of his life sentence in cause number 0478240.
(Pet. App. E at 31 & App. F at 123)
In two grounds, petitioner
claims he is being denied his right to release because of the
trial court's abuse of discretion in assessing the improper, void
cumulation order, which is causing TDCJ to improperly calculate
his time to be released.
II.
Title 28
u.s.c.
§
(Pet. at 1)
SUCCESSIVE PETITION
2244(b) requires dismissal of a second or
successive petition filed by a state prisoner under
specified conditions are met.
28
2
u.s. c.
§
§
2254 unless
2244 (b) (1)- (2).
The court takes judicial notice of the pleadings and state
court records filed in petitioner's prior federal habeas
petitions.
3
A
petition is successive when it raises a claim or claims challenging
the petitioner's conviction or sentence that were or could have
been raised in an earlier petition or otherwise constitutes an
abuse of the writ.
Cir.
2003);
In
re
See Crone v. Cockrell, 324 F.3d 833, 837 (5th
Cain,
137
F.3d
234,
235
(5th
Cir.
1998).
Petitioner's challenge to the trial court's cumulation order could
have
been
raised
in
petitioner's
prior
habeas
corpus
action
challenging the underlying aggravated robbery conviction.
Before a petitioner may file a successive
§
2254 petition, he
must obtain authorization from the appropriate court of appeals.
28 U.S.C.
§
2244(b) (3) (A).
Petitioner has not demonstrated that he
has obtained leave to file this petition from the Fifth Circuit
Court of Appeals.
Thus,
consider the petition.
this court is without jurisdiction to
In re Epps,
127 F.3d 364,
365
(5th Cir.
1997); United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.
2000).
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28
u.s. c.
§
2254 be,
and is hereby,
dismissed for lack of jurisdiction.
Pursuant to Rule 22 (b)
of
the
Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases in
4
the United States District Court, and 28 U.S.C.
reasons
discussed
herein,
the
court
§
further
2253(c), for the
ORDERS
that
a
certificate of appealability be, and is hereby, denied; the denial
shall refer only to the present case and shall have no effect upon
the petitioner's right to seek permission from the Fifth Circuit to
file a successive petition.
SIGNED octobex.
. ·j !?
--'--ii:J'~L.--.,4/!{q......,- -
, 2012.
5
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